1

How Humanity and Human

Rights Are Affected by Wars
Jack Wilson
 2

CONENTS

1. INTRODUCTION..........................................4

HUMANITARIAN INTERVENTIONS AND THE

WEAKNESSES OF ORDER....................................4

I. REASONS AGAINST THE

INTERVENTIONBASED ON STATE VALUE..........23

THE CHARACTERSTATIST INTERNATIONAL SOCIETY.......23

THE SOBERAND..........................................................29

THE ANALOGY WITH THE INDIVIDUAL..........................38

OTHER JUSTIFICATIONS OF THE VALUE OF THE STATE AND

THE DUTY OF NON-INTERFERENCE: THE CONSENT OF

CITIZENS AND THE RIGHT TO SELF-DETERMINATION ........54

A COMMUNITARIAN READING OF THE VALUE OF THE

STATE: THE RIGHTS OF SOVEREIGNTY AND POLITICAL

INDEPENDENCE AS PROTECTIONS OF POLITICAL

COMMUNITIES............................................................66

CULTURAL SOVEREIGNTY............................................90
 3

2. A JUSTIFICATION FOR HUMANITARIAN

INTERVENTIONS IN THE.................................126

WEAKNESSTHEORETICAL VS. PRACTICAL FORCE OF

ETHICAL-CULTURAL RELATIVISM................................126

THE MINIMALIST RESPONSE TO ETHICAL-CULTURAL

RELATIVISM...............................................................61

3. THE COST OF WARS IN DEFENSE OF

HUMAN RIGHTS................................................93

CONSEQUENTIAL VS. DEONTOLOGISM...........................93

HUMANITARIAN CONSEQUENCES. PROPORTIONALITY,JUST

CAUSE, LAST RESORT AND HUMANITARIAN OUTCOME.....86

THE REPERCUSSIONS OF HUMANITARIAN INTERVENTIONS

ON THE INTERNATIONAL ORDER................................133

II. CONSIDERATIONSFINALS.......................187
 4

1. INTRODUCTION

HUMANITARIAN
INTERVENTIONS AND THE
WEAKNESSES OF ORDER
Despite the undoubted achievements
made thanks to the San Francisco
Charter,the Universal Declaration of 1948
and the Covenants of 19661, the process
of universalization of human rights is still
far from being completed and, at times,
gives the impression of being condemned
to no more than an ethical and legal
aspiration2 . To a large extent, this is due
to the difficulties involved in getting
States to transcend the rhetoric of
political statements and consistently
assume the obligations derived from the
provision of their consent in international
treaties on this matter. As is well known,
the former may ignore their international
commitments, subjecting the effective
functioning of the mechanisms for the
protection of international human rights
law to the will of the governments. The
truth is that the international community
still lacks a political power to guarantee
the effectiveness of this order, which, as
 5

Gregorio Peces-Barba has made clear,

would place it in a situation similar to the
medieval polyarchy prior to the formation
of the modern state 3. Worth the
following
1
Vine. CASSESE, A., Human Rights in the
contemporary world, trans. by A.
Pentimalli and B. Ribera de Madariaga,
Ariel, Barcelona, 1993, pp. 17-30;
SOMMERMANN, KP, «The development of
human rights since the universal
declaration of 1948» in PÉ REZ LUÑ O, AE,
Human Rights and Constitutionalism
before the third millennium, Marcial Pons,
Madrid, 1996, pp. 97-112.
two
On the role of the Universal
Declaration of Human Rights in the
process of internationalization of the
same vid. ANSUÁ TEGUI ROIG, FJ, "The
Universal Declaration of Human Rights
and Public Ethics", Anuario de Filosofía
del Derecho, XVI, 1999, pp. 199-223.
3
PECES-BARBA, G., Course on
Fundamental Rights. General Theory,
Carlos III University of Madrid-BOE,
Madrid, 1995, p. 173.
fact: only a third of the UN member states
have so far submitted to the jurisdiction
of the International Court of Justice.
Consequently, the possibility of
establishing an international Court based
on a system of jurisdiction similar to that
existing in national courts does not seem,
at the moment, an achievable objective.

The frustration that this asymmetry

between the means of protection and the
potential violator of international law has
been arousing among all those who
believe and fight for human rights has
begun to be experienced with special
anxiety once, after the age of From the
bipolar world divided into irreconcilable
ideological alignments, some of the main
political obstacles that, for years, had
prevented such progress seemed to be
cleared. This delay, forced at the same
time as justified by the seriousness of the
misfortunes that their ignorance had
caused, would now seem to have to give
way to a certain urgency to undertake the
commitment to the effective
universalization of human rights. A
feeling that has acquired unusual
proportions in recent years due to,
Thus, as Ignatieff affirms, a profound
change has taken place in the moral
atmosphere of international politics5,
which has given way to the opening of
new fronts in the defense of human rights.
The first of these is relatively recent and
is made up of the steps taken to end
impunity for those responsible for human
rights violations that reach the level of
crimes against humanity: the Rome
Convention on the creation of the
International Criminal Court and the
decision of the Appeal Committee of the
House of Lords, in relation to the
extradition request for the crimes of
genocide and torture, declaring the non-
immunity of General Pinochet.

The other great front for the defense of

human rights opened in recent years by
the international community is that of the
new humanitarianism. Since the early
1990s, organizations such as the
International Committee

4
Anglo-American literature speaks of a
CNN effect to refer to the influence that
the media, and especially television, have
had in responding to humanitarian
situations. Vine. ROBINSON, P., “The CNN
effect: can the news media drive foreign
policy ?, Review of International Studies,
25, 1999, pp. 301-309; FIXDAL, M. and
SMITH, D., "Humanitarian Intervention
and Just War," Mershon International
Studies Review, 42, 1998, p. 284.
5
IGNATIEFF, M., The honor of the warrior.
Ethnic warfare and modern
consciousness, trad. de P. Linares, Taurus,
Madrid, 1999, p. 89.

The Red Cross, UNICEF and UNHCR have

been conducting trillion dollar operations
and using the global media to achieve
genuine popular demand for international
humanitarian interventions. The
international community has since
ordered far-reaching actions: among
others, the humanitarian rescue of the
Kurds and the subsequent creation of a
security zone for them under the
protection of the North American air
umbrella; intervention in Somalia to end
the fighting between rival factions and
bring food to the victims of hunger; the
dispatch of UN troops to Bosnia to protect
humanitarian aid convoys, etc6.
Although some of these actions have been
culminated with reasonable success, for
some time now, quite a few voices have
begun to seriously question the extent to
which humanitarian interventions are the
right direction in the defense of human
rights. The unsatisfactory way in which
the intervention in Somalia ended, the
inability of the international community
to do anything to stop the genocide of
over a million people in Rwanda, the
slowness with which it finally intervened
in Bosnia They would have cast shadows
and doubts about whether the
international community is really
prepared to intervene, if it always knows
when and where it should act, and even if
it really should. To all this have been
added the problems generated by the
military intervention carried out in 1999
by NATO on the territory of Kosovo,
which, as is well known, has caused a
division between intellectuals and
lawyers when assessing its opportunity
and legitimacy. For some, we would be
facing an authentic act of defense of
human rights and they have even come to
see as something more than a coincidence
that the day of the beginning of the
bombings of the Atlantic Alliance, on
March 24, was the same in which the five
British lords resolved the non-immunity
of the former Chilean dictator7. For
others,

Therefore, can humanitarian war

interventions be considered a necessary
and correct step to overcome the
weaknesses of the international
guarantee system for human rights? Is it
acceptable to violate the sovereignty of a
State to stop acts such as genocide,
cleansing
6
Ibid, p. 90.

7
CAPLAN, R., “Humanitarian
Intervention? Which way fodward?
”,Ethics and international affairs,14, 2000,
pp. 23-28.

ethnic, etc.? Can the use of armed force be

an adequate instrument to protect
internationally recognized rights?

In support of an affirmative answer, it is

stated that humanitarian interventions do
nothing more than take human rights
seriously. If these are the source of
absolute correlative duties that must be
respected and - if necessary - observed
above any other social, political or legal
consideration, the interventions would be
the expression of such a deep conviction
about morality, universality and
peremptory nature of such rights as to
justify their defense against other States,
including through the use of arms and the
sacrifice of their own nationals8.
Humanitarian interventions would thus
be the fruit of progress in the moral
sentiments of some individuals and
peoples capable of committing
themselves to the suffering of others and
overcoming the resigned or indifferent
tendency hitherto dominant to tolerate
everything that happens beyond their
borders9 . If, as Raymond Aron said, fear
of war is usually the tyrant's opportunity,
taking the defense of human rights
seriously would justify us ending our
complicity and appeasement policy and
winning by force10. The intensity of these
convictions has reached such a peak at
times that the emotionality of the term
intervention seems to have changed its
sign and, with it, also reversed the burden
of proof.
8
Not surprisingly, in relation to the first
of these circumstances, the existence of a
certain inclination to perceive the
predisposition to resort to the use of force
has been pointed out as an indication of
what are the demands or claims that
could be qualified as "human rights". Vine.
LAPORTA, F., "On the concept of human
rights", Doxa, 4, 1987, p. 38; LÓ PEZ
CALERA, NM, Philosophy of Law (I),
Comares, Granada, 1997, p. 210.
9
WALZER, M., “The politics of
d i f f e r e n c e : statehood and tolerance
in a multicultural world ”, Isegoría, 14,
1996, p. 48.
10
LUKES, S., "Five fables about human
rights", in SHUTE, S. and HURLEY,

S. (eds), On Human Rights, trans. by H.

Valencia Villa, Trotta, Madrid, 1998, p. 46.
eleven
Until now, the most widespread
opinion was the one expressed in the
following terms by Garzó n Valdés: “To
qualify an action as an intervention is to
place a kind of pejorative label on it that
requires a justification for it. The
intervention is, in this sense, imputed to
an agent who must bear the burden of
proof and demonstrate that his action
was either not an intervention or, if so,
that he had good moral reasons to act as
he did ”. GARZÓ N VALDÉ S, E.,
«Interventionism and Paternalism», in
Law, Ethics and Politics, Center for
Constitutional Studies, Madrid, 1993, p.
396. Hence, for Remiro Bro- tó ns, “the
progressive nature of non-intervention
must be presumed; that of humanitarian
interference has to be proven on a case-
by-case basis ”. REMIRO BROTÓ NS, A.,
Civilizados, barbarians and savages in the
new international order, McGraw-Hill,
Madrid, 1996, p. 42.

The detractors of the interventions always

begin their criticism by pointing out that
we are dealing with acts contrary to
international law. More than the
protection ofhuman rights, the order
enshrined in the Charter of San Francisco
has been based on the principles of non-
intervention in matters pertaining to the
sovereignty of States and the prohibition
of the use of force, except in cases of
legitimate defense and restoration of
international peace. It seems difficult to
doubt that humanitarian interventions
would violate both principles since, on
the one hand, they violate the territorial
integrity and political independence of a
State and, on the other, involve a use of
force not authorized by any of the
exceptions of the letter. The fiercest
critics of the interventions point out that
although, certainly,

The interventions carried out outside the

United Nations, such as the NATO

campaign in Kosovo, deserve even more
qualms. As is known, this was perpetrated
without the prior authorization of the
Security Council, thus violating the
provisions of the Charter regarding the
use of force. As happened a few decades
before with the interventions of Tanzania
in Uganda, or India in Bangladesh, 12 it is
very revealing that none of the
participating States in this campaign
appealed to human rights, much less
invoked a right of humanitarian
interference to protect its legal validity13.
Far from it, much more traditional
arguments were used and, therefore,
adjusted to the law, such as legitimate
defense, the existence of an implicit
authorization from the United Nations,
and, at most,
12
According to Walzer, the interventions
are almost never completely
humanitarian, but, in most cases, combine
altruistic elements with the interest of the
State. Clear examples of what are called
humanitarian interventions are very rare.
In fact, he has only found mixed cases, in
which the humanitarian motive is only
one among many. WALZER, M., Just and
injust wars. A moral argument with
historical illustrations, Basic Bo- oks, New
York, 2nd edition, 1977, p. 101.
13
On this aspect Vid. KRISCH, N.,
“Unilateral enforcement of the collective
Will: Kosovo, Iraq and the Security
Council”, Max Planch International
Yearbook of United Nations Law 3,
Kluwer Law International, The Hague,
1999.
14
RAMSBOTHAM, O. and WOODHOUSE,
T., Humanitarian Intervention in
Contemporary Conflict. A
reconceptualazing, Polity Press, 1996, p.
19.

What is the reason for this difficulty in

legally and politically justifying
humanitarian interventions? For its most
idealistic and convinced defenders, the
origin of the problem would be found in
the immobility of the international
community and the insecurity of
internationalist legal science to transcend
the conjunctural scenario of the postwar
period. What has been characteristic of
this has been the establishment of an
excessively rigid regulation of the use of
force and, above all, the aristocratic
structure of the UN Security Council and
the anachronistic paralyzing power of the
veto power of its five permanent
members. A reform of Chapter VII of the
Charter of the United Nations authorizing
humanitarian armed interventions as an
exception and ending the privilege of the
classical powers,

For its most pessimistic detractors,

interpret the rejection in the previous
wayo Insufficient political and legal
support for interventions means closing
our eyes to an enormously complex and
unfortunately less ideal reality. In the first
place, the absence of a shared conception
of international justice embodied in
human rights15 and the presence, on the
contrary, of a consensus on the rights of
States to political and territorial
autonomy16. Given the impossibility of
reaching an agreement on the principles
that should govern the international
interpretation and protection of human
rights, the proclamation of a right of
humanitarian interference would
jeopardize the prohibition to intervene in
force in international society17. Second,
we are facing operations that can end up
degenerating into real wars, and
accepting that war can be a legitimate
instrument to defend human rights
implies incurring the great incongruity:
that of, to defend the human rights of
some individuals, admitting the use of a
means that causes destruction and death
of innocent victims, violating thus the
human rights of other people.
Consequently, the only war that is legally,
politically and morally admissible is that
carried out in legitimate defense.

fifteen
As Henry Bull states, the recognition
or tolerance of humanitarian
interventions becomes an implicit
recognition or admission of a shared
conception of human rights; and, vice
versa, the refusal of the international
community in this regard, the non-
existence of said doctrine. BULL, H.,
Intervention in world politics, Clarendon
Press, Oxford, 1984, p. 193.
16
Vine. THOMAS, C., "The Pragmatic Case
against Intervention" in FORBER, I. and
HOFFMAN, M., Political Theory,
International Relations and the Ethics of
Intervention, cit ,, pp. 91-103.
17
WHEELER, NJ, "Pluralist or Solidarist
Conceptions of International Society: Bull
and Vincent on Humanitarian
Intervention", Millenium, vol.21, nº3,
1992, p. 468.

The goal of thisMy job is to examine the

main arguments put forward in defense
or rejection of the legitimacy of
humanitarian interventions. To do this,
we will follow the following steps. First,
we will analyze how and to what extent
States and their rights may or may not
represent an insurmountable barrier to
interventions. In this regard, we will try
to show that none of the arguments based
on the existence or rights of States has a
higher moral status than the rights of
individuals whose protection is being
intervened. Second, we will focus on the
justification that human rights can
provide for interventions. This requires,
on the one hand, to prove the full
universality of the rights that provide a
justification for these and, on the other
hand, analyze whether human rights - in
addition to representing a moral reason
in their favor - are also sufficient to justify
humanitarian interventions. To this end,
we will point out the limits of a
justification for interventions based solely
on human rights, completing their study
with an examination of their
consequences and of the way in which
deontologism and consequentialism can
be reconciled.

At the beginning of this analysis, we are

aware that the debate about the
convenience and legitimacy of the
interventions can at times acquire very
dense profiles. There is sometimes the
impression that it does not only revolve
around saving the lives of a few hundred
or thousands of people but that, at least
from the Western perspective, it also
becomes a controversy about the
structure and hierarchy of principles that
should govern the international order. As
we can see, in the background of any
attempt to justify a right or duty of
interference or the prohibition to
intervene there is almost always a model
of world society: idealist or realistic,
communitarian or cosmopolitan. based on
the international subjectivity only of the
States or also that of individuals and / or
NGOs, etc. The discussion about
something as concrete as who should do
it, in what way, when, for what reasons
and at what price to intervene often ends
up turning into a debate about such
transcendental questions as the image
that we have ourselves and the the way
we build our identities and build the
world we live in18.

Finally, a brief clarification should be

made regarding the meaning that
throughout this work will be attributed to
the term “humanitarian intervention”. As
is known, in international law language,
by “inter-

18
HOFFMAN, M., «Agency, identity and
Intervention, in FORBES, I., and
HOFFMAN, M., Political Theory,
International Relations and the Ethics of
Intervention, Sant Martin Press, New
York, 1993, p. 194.
vencion ”is understood to be any form of
coercive interference in the internal
affairs of a State. As proclaimed in 1986
by the International Court of Justice in the
Nicaragua case, it includes the threat of
force, armed intervention, either in the
form of direct military intervention or
through support for the activities of
terrorist or paramilitary groups in
another State. , and even economic
sanctions or political measures if it is
proven that they have coercive effects.
Without thereby intending to interfere in
a terminological discussion or stipulative
claim that would further escape my
competence and, at least as regards those
cases in which it can also be classified as
humanitarian, I have chosen to reserve
the expression “intervention” for those
acts of interference in the territory or
affairs of another State that involve the
use of armed force. It seems that, outside
of legal and political language,
intervention is almost always spoken to
refer to an act of armed interference,
speaking in other cases of –simply– the
imposition of sanctions or the practice of
recommendations.

By opting for this meaning of the term

intervention, other forms of humanitarian
action that do not consist of the use of
force would also be excluded from the
meaning of humanitarian interventions.
In the humanitarian language of NGOs
and some international organizations, it is
common to use this term to designate all
types of action - not necessarily of a
warlike nature - that have a humanitarian
purpose such as the provision of food,
medical assistance , refugee protection,
etc.
I. REASONS AGAINST THE
INTERVENTIONBASED ON STATE VALUE

The characterstatist international

society

The survival of a statist conception of

international society represents a very
powerful brake not only for aggressive
interventions, but also for humanitarian
ones. Furthermore, talking about
interventions in general, and
humanitarian interventions in particular,
makes sense only within the framework
of an international community made up of
States separated by borders that, despite
being often the product of arbitrariness19
They are not questioned but only
temporarily trespass to end morally
intolerable situations.

The fact that statesand not individuals or

other subjects make up the only world
society known up to now, it would come
to constitute, at least for the moment, an
immovable element of the landscape, a
datum that must be assumed by any
conception, let alone realistic, but
minimally sensible of international
justice. While it is true that in recent
decades the power of States has been
eroded and made relative by human
rights, today glimpsing a disappearance of
the former in favor of a world order based
on the universal recognition and
protection of the latter does not seem

19
For Rawls, from the fact that borders
are historically arbitrary it does not
follow that their function in the law of
nations cannot be justified. The important
thing is not to wonder about this
arbitrariness, but about the values
promoted by the States. RAWLS, J., «Law
of People» in SHUTE, S. and HURLEY, S.
(eds), Of human rights, cit., P. 60. As
Walzer recognizes, it is probable that the
existing borders at a given moment are
arbitrary, poorly drawn, and the product
of old disputes. In any case, these lines
establish a habitable world. WALZER, M.,
Just and injust wars, cit., P. 56.
 II. REASONS AGAINST THE INTERVENTION ... 22

neither feasible nor reasonable. On the

contrary, the vast majority of these States
(especially the large number that saw the
light after decolonization) strongly
defend the principle of non-intervention,
thanks to which they consider themselves
safe from old and new colonialism. Hence,
within a community of this type, the
possibility of limiting sovereign rights by
means of armed interventions is
extremely complicated and raises alarm,
whatever the purposes and reasons for
their use are. defending.

From the foregoing perspective, the

constitutionalization of human rights
should be interpreted and valued as an
obvious sign of the moralization of the
international legal and political order, but
not as the recognition of the international
subjectivity of the individual together or
even above that of the States20.
Therefore, the most that the international
community can do to ensure the
enjoyment of human rights is to get them
to commit themselves through
international treaties that recognize and
guarantee them. More than monitoring
and punishing human rights violations,
the most decisive task of international
 II. REASONS AGAINST THE INTERVENTION ... 23

legal texts has been to induce changes,

often essential, in the constitutions of
many States.

In the absence or expectation of a new

cosmopolitan international order, the
onlyrealistic and reasonable alternative
passes, necessarily,both to moralize and
to strengthen the State. In Ignatieff's view,
there is no greater threat to post-Cold
War world peace than the destruction of
states and, consequently, the ability of
their civilian populations to feed and
protect themselves from both hunger and
inter-ethnic conflicts22. For this reason,
M.Fixdal and D.Smith consider it a
mistake, both from an empirical and
analytical perspective, to consider that
the era of States is coming to an end. It is
true that, as D.Bell pointed out, their
capacity to confront the greatest current
problems is limited, that just as the State
is too big to answer certain questions, it
shows too much

twenty
Therefore, a distinction must be
made between the humanization
 II. REASONS AGAINST THE INTERVENTION ... 24

experienced by International Law and the

subjectivity of the individual. Despite the
significant steps taken in recent years in
favor of the latter, the truth is that the
gradual subjectivity assigned to the
human person is made through the
recognition and guarantee provided by
the State. ROLDÁ N BARBERO, J., Essay on
Public International Law, Publications
Service of the University of Almería, 1995,
p. 39.
twenty-one
RUBIO CARRACEDO, J., "Liberal
Rights or Human Rights?" in RUBIO
CARRACEDO, J., ROSALES, JM and
TOSCANO, M., Citizenship, Nationalism
and Human Rights, Trotta, Madrid, 1998,
p. 164.
22
IGNATIEFF, M., The honor of the
warrior. Ethnic Warfare and Modern
Consciousness, cit., P.

102.
small to face certain challenges. However,
there is no other agency capable of
mobilizing the necessary resources and
organizing solutions for the problems that
affect citizens. On the other hand,
although there are those who have
interpreted the increase in the number of
interventions as a sign of the collapse of
the state system, this data could also
indicate a need to strengthen state
sovereignty23.

It should also be noted that, in addition to

being unrealistic, it seems incoherent to
postulate an alternative between
universal human rights and sovereign
States as if an absolute and irreconcilable
antagonism mediated between the two.
While it is true that –especially in recent
decades– some of the greatest threats to
human rights have come from States, it is
also true that they continue to be their
main instrument of protection, thus
evidencing the paradox that the former
act as limits to power but, at the same
time, they need it for their effective
protection24. A situation that can be
explained by showing, as Habermas does,
that human rights have a Janic face, that
they are directed at the same time to
morality and law (or, what is the same, to
the State), and to what, if as moral norms
they refer to everything that has a
“human face”, as legal norms they only
protect people to the extent that they
belong to a certain legal community25.
The dominant trend is therefore to
consider that, while the active
universality of human rights is both moral
and legal, their passive universality is - at
least for the moment - predominantly
moral.

Aware of these circumstances, and in line

with whatthat Professor Peces-Barba has
been defending as a dualistic conception
of human rights26, Walzer justifies the
political hegemony of States in
international society by appealing to a
distinction between the foundation of
human rights and that of their protection.
While the first ethical (individual rights
derive from ideas about moral
personality), the process by

2. 3
FIXDAL, M. and SMITH, D.,
"Humanitarian Intervention and Just
War", cit., P. 289.
24
Vine. DE ASÍS ROIG, R., The paradoxes
of fundamental rights as limits of power,
Debate, Madrid, 1992, especially, pp. 80-
82. Vid., Also, DONNELLY, J.,

"Social construction and International

human rights" in DUNNE T. and
WHEELER, N., Human rights in global
politics, Cambridge University Press,
1999, p. 86.
25
HABERMAS, J., «About legitimation
based on human rights» in The post-
national constellation, Paidó s, Barcelona,
1999, p. 153.
26
Vine. PECES-BARBA, G., «On the
foundation of human rights. A problem of
morality and law ”in MUGUERZA, J., The
foundation of human rights, Debate,
Madrid, 1989, pp. 265-277. Vine. likewise
DE ASIS ROIG, R., On the concept and
foundation of human rights. A dualist
approach, Cuadernos Bartolomé de las
Caasas, Dykinson, Madrid, 2001.
The means of which they are guaranteed
is of a political nature. Walzer will say
that “it does not seem that you can simply
proclaim a list of rights and look for
armed men around you to enforce them.
Rights are only guaranteed within
political communities where they have
been collectively recognized, and the
process by which they become so, is a
process that requires a political arena27.
Therefore, the result of this tension
between the ideal morality of the
foundation of individual rights and the
factuality of the political nature of their
protection is a world community made up
of States and not humanity, a society that
recognizes “minimal and broad rights.
negative, designed to protect the integrity
of nations and regulate their commercial
and military transactions ”28.

However, representing an unquestionable

and not yet surmountable factum is not
now and has never been enough for the
State to be able to assert itself in
international society. Like any form of
power, that represented by the State has
rarely imposed itself as a pure fact but
has always manifested a marked
tendency to transfigure itself, making
obedience to it not an appeal to fear but
to authority. In reality, as the creation of
modern political and legal culture, the
political organization that we know as the
State supposes in itself an overcoming
and rationalization of power and force, a
reality that pretends to be something
more or something different: order,
security, protection of rights, guarantee of
cultural integrity, etc. As a result of that,
Different legal and moral categories have
emerged to soften and not close to the
ideal the de facto political reality, to
justify that the States deserve to be
respected. Many of them have been based
on the prohibition of intervening in the
territory and affairs of another State, of
respecting their autonomy regardless of
their political system and what may
happen to those who live within their
borders.

The soberand

One of those categories, I do not know if the

first, but the one that has possessed the
most force so far, is the notion of
sovereignty. Despite some attempt to
reconcile both principles29, the vigor that it
has possessed and, still today, retains this
principle, explains

27
WALZER, “The moral standing of the
States: A response to Four Critics”,
Philosophy & Public Affairs, Winter, 9, nº
2, 1980 ”, pp. 229-230.
28
Ibid, pp. 226-227.
29
Vine. CHOPRA, J. and WEISS, TG,
“Sovereignity is no longer Sacrosant:
Codifying Humanitarian Intervention”,
cit., Pp. 107-108; REISMAN, WM,
"Sovereignity and Human Rights in
Contemporary International Law", The
American Journal of International Law,
84, 1990, pp. 866-876.
much of the theoretical and practical
difficulties present for the implementation
and justification of humanitarian
interventions. Not in vain, it is frequent to
present the principle of non-intervention as
the indispensable corollary of the
recognition of equal sovereignty and
independence.States30. However, we are
faced with a very elastic concept, which
currently carries different meanings, from
which it is very revealing that it is
referred to as a legal principle, a political
concept, a collective right or a
philosophical category. This diversity of
meanings ends up generating a certain
confusion about the logic and type of
foundation that sovereignty provides for
the duty of non-interference: whether it is
only of a legal and political nature, or also
of a moral nature. Furthermore, the
internal and external dimensions of
sovereignty are not always rigorously and
clearly distinguished, thus producing a
certain confusion as to which is related to
the prohibition of intervention, if with
both or only with one of them.

To analyze the origin and the logic that

animates the notion of sovereignty, it is
necessarygo back to the singular process
by which, through an appeal at the same
time as secularization of theological
categories and concepts31, modern legal
thinking will define and legitimize the
State as an absolute, unique and
unlimited power. By means of a
justification that starts in the state of
nature, the philosophical-legal category of
sovereignty will turn the State into the
only source of legal norms and, therefore,
into a legally unlimited power. We would
be, therefore, before a principle whose
internal logic ends up legally and
politically cloistering the States in an
enclosure where, at least for Bodino and
Hobbes, their power is described as
equating it to divinity32. If, by definition,
sovereign power is unique, A logical
consequence of the idea of sovereignty is
precisely the prohibition of interventions
since these would suppose the presence
of a second power within the territory of
the same State. The absence of legal limits
for the sovereign, together with the
strong moral skepticism prevailing at the
time and the recourse to reason of State,
will in practice mean the sovereign's
recognition of a power that can be
exercised without the need to appeal to
ethical considerations, with total
autonomy , in the same way that the
owner has the power to use and enjoy his
domain33.

30
Vine. RAMÓ N CHORNET,C., Necessary
violence? Humanitarian intervention in
International Law, Trotta, Madrid, 1995,
pp. 24 ss.
31
Vine. SCHMITT, C., "Political Theology"
in Political Studies, trans. by FJ Conde,
Doncel, Madrid, 1975.
32
PÉ REZ TRIVIÑ O, JA, The legal limits of
the sovereign, Tecnos, Barcelona, 1998, p.
57.
33
KRATOCHWIL, F., «Sovereignity as
dominium: Is there a right of
humanitarian intervention? », in LYONS,
G. & MASTANDUNO, M. (eds.), Beyond
Westphalia? National Sovereignty and
International Intervention, John Hopkins
University Press, Balttimore, 1995, p. 26.
However, the realist tradition initiated by
Hobbes carries an implicit paradox: if the
overcoming of the state of nature in the
sphere of the different national
communities leads to morally justify the
absolute and unlimited character of the
internal sovereignty of the States, the
situation is far from being the same in
international society made up of different
state units.The States are here in a
prepolitical bellum omnium condition
that, unlike the state of nature between
individuals, is an effective condition and
not purely hypothetical34, there being,
consequently, an unlimited natural right
of the States to invade the states. Borders
of other States35. According to this last
piece of information, it seems more
reasonable to reject that the States enjoy
a true moral personality36. That they end
the battle of opinions and that their
reason and will are the origin of the
justice that makes the existence of a
political society possible, is not a
sufficient reason to recognize them rights
of a similar nature in international
relations. In Hobbes and, above all, in all
the later realist theory clinging to this
anarchic image of the international
order37, State independence can only be
founded on means such as diplomacy,
mutual deterrence, balances of power,
etc., but never on moral principles. The
juridical-political character of
sovereignty, together with the ethical
skepticism that had at first made it
possible to justify its unlimited nature,
makes it unfeasible to establish a moral
right of non-interference.

Hence, Luban is correct in pointing out

thatThe notion of sovereignty is,
understood in this way, a concept
insensitive to legitimacy that does not
allow, therefore, to recognize any moral
right to the State. 38. As Garzó n Valdes
points out, sovereignty is simply the
ability of a State to freely impose its legal
norms on a population that is in a specific
territory and this does not necessarily
imply any moral status that, as such,
deserve unconditional respect39.
Moreover, between the notion of
sovereignty and the

3. 4
For Hobbes, “it is a fact that, in all ages,
kings and people who have sovereign
authority are, because of their
independence, in a situation of perennial
mutual distrust, in a state and disposition
of gladiators, pointing their weapons,
staring at each other, that is, at their
fortresses, garrisons and installed
cannons, on the borders of their
kingdoms, constantly spying on their
neighbors, in a bellicose attitude… ”.
HOBBES, T., Leviathan, trans. de C.
Mellizo, Alianza, Madrid, 1989, Ch. XIII, p.
108.
35
Vine. FERRAJOLI, L., «Sovereignty in the
modern world», cit., Pp. 135-136.
36
McCARTHY, L., "International Anarchy,
Realism and Non-Intervention," in
FORBES, I. and HOFF-MAN, M., Political
Theory, International Relations and the
Ethics of Intervention, St. Martin Press,
New York, 1993, p. 80.
37
Vine. BULL, H., The Anarquical
Society: A study of order in
w o r l d p o l i t i c s , MacMillan, London,
1977.
38
LUBAN, D., "Just Wars and Human
Rights", Philosophy and Public Affairs,
winter 1980, vol.9 (2), p. 166.
39
GARZÓ N VALDÉ S, E., «Interventionism
and Paternalism», cit., P. 388.
Right (understood as a limit and not a
mere vehicle of political will, as a ratio
and not as voluntaries) there is an
insurmountable tension. This is
something that, as we shall see, natural
rights theorists and only a couple of
centuries later internationalist legal
science will quickly grasp. As we know,
for a long time it has not tired of
repeating that human rights, regardless of
the legal basis for the duty of States to
respect them, have ceased to belong to
the category of matters that are
essentially of its jurisdiction. No State can
escape its international responsibility on
the pretext that this matter is essentially
one of its domine reservé40.

The analogy with the individual

Prior to this evolution, there will be,

however, those who do attribute a moral
value to that autonomy or unlimited
freedom of the State by making use,
curiously (and as we shall see, in a way
that could only end up being
contradictory), of some of their own
concepts. of a philosophy inspired by
individualistic epistemological, moral and
political assumptions such as the
rationalist Natural Law.

Certainly, with the idea of individual

rights, modern natural law will lay the
foundations for a progressive moral and
legal limitation of the State. As regards his
internal sovereignty, there is no doubt
that Locke and Pufendorf will make him
one of the main promoters and the true
philosophical sinew of the first human
rights declarations of our time and, in
general, of all subsequent
constitutionalism. Transformed into an
instrument erected in defense of
individual rights, the power of the State
can now enjoy no intrinsic but derived
legitimacy and enjoy only limited
sovereignty, to the point that, at least on
that plane, sovereignty today it is an
exceeded category41.

In the field of external sovereignty, the

line pointed out first by Grotius and later
by Vattel is undoubtedly encouraging, for
whom, although in a rudimentary way,
natural law would come to specify in part
the rights of individuals vis-à -vis the
State. Although we find similar ideas in
earlier thinkers such as Bartolomé de las
Casas, it has been argued that it is in the
former that we find the first authoritative
formulation of the principle.

40
CHEEK SALCEDO, JA, Sovereignty
of States and Human Rights .., cit., P. 32.
41
Vine. HART, HLA, The Concept of
Law, trans. de G. Carrió , Abeledo-Perrot,
1992, pp. 89-97.
pio of humanitarian intervention42. In De
iure beli ac pacis, Grotius will declare that
if a tyrant makes his subjects victims of
atrocities, it does not follow from the fact
that subjects cannot take up arms that
others in a situation of responsibility
towards humanity as a whole do not. can
take up arms in defense of those: "When
the injustice is as clear as that of Busiris,
Falaris or the one that the Thracian
Diomedes exercised against his subjects,
that no just man would approve of it, then
the right of human society is not
inhibited. ”43. It is the subject of
discussion, however, whether this right of
intervention for humanitarian reasons
defended by Grotius can be seen as the
exercise by a State of the right of rebellion
of a people against tyranny44 or whether,
as Chesterman defends,

The other great defender of humanitarian

intervention will be E.Vattel. Certainly
this part of the analogy between the State
and the individual to which we will
immediately refer to defend that the
duties of a nation towards itself are its
exclusive domain. Vatell will say that no
sovereign can bench another sovereign,
so that no foreign power can interfere
with another sovereign state other than
through good offices. However, the
French jurist and philosopher admits the
legitimacy of a right of intervention or
humanitarian interference in certain
cases. Specifically, he observes that when
the tyranny of a sovereign breaks the
political bond that binds him to his
subjects, they become holders of a right of
resistance and rebellion that, to become
effective,

However, at the international level, the

theory of natural rightsor, at least its
individualistic imprint, will end up
operating for a certain moment more as
an obstacle than as a means to establish
limits

42
Vine . LAU TERPATC H, H., "The
Grotian Tradition in International Law",
British Year Book of International Law,
1946, p. 46. H. Vincent considers this
thesis somewhat exaggerated. Vine.
VINCENT, RJ, "Human Rights and
Intervention," in BULL, H., KINSBURY, B.
and ROBERTS, A. (eds), Hugo Grotius and
International Realtions. Clarendon Press,
Oxford, 1992, pp. 242 and 247.
43
GROCIO, H., De iure beli ac pacis, Book II,
chap. XXV, mp. 8.2.
44
TESÓ N, F., Humanitarian
Intervention, Dobbs Ferry, International
Publishers, 1988, p. 56.
Four. Five
CHESTERMAN, S., Just war or just
peace? Humanitarian Intervention and
International Law, Oxford University
Press, 2001, p. fifteen.
46
VATTEL. E., The Law of Nations:
Principles of the Law of Nature Applied to
the conduct and Affairs of the Nations and
Sovereign [1758], Carnegie Institution,
Washington, 1916,

p. 37. Cited by CHESTERMAN, S., Just war

or just peace ?, cit., P. 18.
legal and moral to the external
sovereignty ofthe states. This
phenomenon is due to the way in which
philosophers and jurists are going to
assimilate the State to the individual and
attribute moral rights comparable to
those that rationalist natural law
recognized them. This is going to be one
of the ways through which legal
positivism is going to displace scholastic
natural law as the dominant conception of
international law47. If Hobbes and
Bodino had used the analogy with God to
describe and, indirectly, legitimize the
majestic power of the State, the
enlightened rationalists now use another
type of personification - the human one -
to explain and justify their autonomy and
independence. The analogy between the
state and the individual is found in
practically all the thinkers of the time,
even in a supporter of submitting
sovereignty to an external power such as
Kant when he describes peoples as
“individuals who in a state of nature harm
each other48, but, except in the case of
Vattel, this similarity almost always
functions as a barrier to interventions.
Nations can be morally equated with
people who live freely in the state of
nature, a situation that, unlike the
Hobbesian model, does not give them a
natural right to do whatever they please,
but rather - starting from a more optimal
anthropology. and, therefore, from the
drawing of a less bellicose prepolitical
society - to the demand for respect for the
rights of autonomy and independence of
other States.

Along these lines, Wolff tried to develop

the principle of the moral autonomy of
states from domestic political morality. The
German philosopher argued that “nations
should be equated with people in a state of
nature” 49 and deduced from this premise
that, between them, as well as between
people, there is a moral equality: “since
that by nature all nations areequal and
that, above all, individuals are equal in the
moral sense that their rights and
obligations are the same; the rights and
obligations of all nations are also by
nature the same ”50. After noting that
these rights are defined by their
sovereignty, Wolff ended by concluding
47
Agree With Chesterman, the principle
of nonintervention must be linked to the
displacement of Scholasticism by
positivism in 18th century International
Law. In this way, the term “humanitarian
intervention” only emerged in the 19th
century as a possible exception to this
rule of non-intervention. Ibid, pp. 3 and 8.
48
KANT, I., Perpetual peace, trans. de J.
Abellá n, Tecnos, Madrid, 1985, p. twenty-
one.
49
WOLFF, C., Jus gentium methodo
scientifica pertractatum, [1764],
Clarendon Press, Oxford, 1934, sec. 2 P. 9.,
cit. by BEITZ, C., Political Theory and
International Relations, Princeton
University Press, New Jersey, 1979, p. 75.
fifty
Ibid, p. sec. 17, p. 16.
directly the principle of non-
intervention:that no nation has a natural
right to any act that pertains to the
exercise of sovereignty of another
country ...; no ruler of one state has the
right to interfere in the government of
another, nor can he consequently
establish or do anything in that state, and
the government of the sovereign of one
state is not subject to the decision of the
sovereign of another state ”51. It follows
that a war against a nation will lack
legitimacy because it "is very evil, violates
natural law in a horrible way, or commits
offenses against God."

In conclusion, individual natural rights are

only a supreme deontological criterion in
domestic societies, not in international
society.of which only the States are part.
Therefore, the State is subject to two
different types of morality: on the one
hand, the one in force in the domestic
sphere, which generates obligations
towards its citizens but not towards other
States; on the other hand, the one that
governs international society, whose
fundamental principle is the prohibition
of interference in all matters that remain
within the internal sovereignty of the
States, including - if it is the case - the
respect or not of the natural rights made
positive. in their respective legal systems.
Individual rights make it possible to
explain and justify the existence of the
State, but the position it enjoys in
international society is attributed to it by
the rest of the States that are part of it. It
is not articulated, then, no appreciable
line of union or continuity between one
and the other rights, which are located in
clearly differentiated spatial dimensions
and legitimacy. It is true that
contractarian thinking conceived the
State as an instrument for the defense of
individual human rights, but, once it was
inserted into the society of States, its
ethical code changed, here being its
obligation to respect the law. sovereignty
of other states, not individual human
rights.

Hegel offers an answer to this paradox by

speaking of the State not as the holder of
moral rights comparable to those
recognized to individuals, but as a higher
ethical reality, as the last stage in the
development of moral life53. The
influence of the “Hegelian myth” in the
internationalist legal thinking of the 19th
and 20th centuries should be highlighted,
during which the doctrine ignored the
humanitarian limits to sovereignty
indicated by Grotius and Vattel to adhere
to the line initiated by Wolff54. The
influence of iusprivatista legal science will
also contribute to all this, which, taking
into account

51
Ibid, sec. 257, p. 131.
52
Ibid, p. 256.
53
HEGEL, WF, Philosophy of Law,
trans. by E. Vá squez, New Library, Madrid,
2000, sec. 257., p. 302.
54
TESON, FR, Humanitarian
Intervention: an inquiry intolaw and
morality, cit., p. 57.
arguments of natural law and organicism,
will go so far as to affirm that collective
subjects such as the State have a moral
body, a spirit, a true natural entity, which
can be considered a true moral person
and not a mere analogy of physical
persons55.

More validity has preserved the thought of

Stuart Mill, whose defense of theThe moral
value of the State and the principle of
non-intervention will revolve around its
authentic identification with the political
community or people. In the pamphlet A
few words about non intervention (1859),
Mill will argue in favor of states as
communities that enjoy self-
determination, regardless of whether or
not citizens participate in the formation of
political will. The reason behind this
statement is that self-determination and
political freedom are not equivalent
terms. The first is a broader idea since it
describes not only a specific political
regime, but also the process by which a
community comes to establish it or not. A
state enjoys self-determination even if its
citizens struggle and fail in their attempt
to establish free institutions, but it is
deprived of it if such institutions are
established by an intruder neighbor.
Members of a community must seek their
own freedom, just as individuals must
cultivate their own virtue. But they
cannot be made free (just as they cannot
be made virtuous) by an external force. In
fact, political freedom depends on the
existence of individual virtue, and this is
something that the armies of another
country seem unlikely to produce unless
they inspire active resistance. Self-
determination is the school in which
virtue is learned or not and freedom is
won or not; it is, therefore, the right of a
people "to become free by their own
efforts."

55
LÓ PEZ CALERA, NM, Are there
collective rights?
I n d i v i d u a l i t y and sociality in the theory
of rights,Ariel, Barcelona, 2000, p. 126.
56
MILL, JS, "A few words about non
intervention" in Collected Works, vol. XXI,
Es- says on Equality, Law and Education,
University of Toronto Press / Routledge
and Kegan Paul, Toronto / London, 1984,
pp. 109-124. On the anti-interventionism
of Mill Vid. VAROUXA-KIS, G., "John Stuart
Mill on Intervention and non
intervention", Millenium, vol. 26, num. 1,
1997, pp. 57-76. Interestingly, there are
those who have used paternalistic
arguments to reject humanitarian
interventions. This is the case of Elfstrom,
who argues that there is a relationship
between the government and the citizens
similar to that between father and son.
Only governments can interpret what are
the interests of citizens and, when this
does not happen, only they have the
responsibility to act. Thus, The tension
between the sovereignty of States and the
claims of the international community to
protect individual rights are quite similar
to those between the rights of parents to
raise their children and the demands of
society to protect basic rights of children
against parental abuse. ELFSTROM, G.,
“On dilemmas on intervention”, Ethics, 93,
1982-1983, pp. 709 sqq. For a critique of
this theory Vid. TESON, F., Humanitarian
Intervention, cit., Pp. 84-85. pp. 709 sqq.
For a critique of this theory Vid. TESON,
F., Humanitarian Intervention, cit., Pp. 84-
85. pp. 709 sqq. For a critique of this
theory Vid. TESON, F., Humanitarian
Intervention, cit., Pp. 84-85.
However, the analogy between the state
and the individual does not seem to
constitute a minimally solid basis on
which to assert the morality of state
rights. As Beitz has pointed out, states
lack the unity of consciousness and
rational will that constitutes the identity
of people. They are neither voluntary
associations nor organic wholes with the
integrity and unity attributed to people as
persons57. On the other hand, when
speaking of the rights of the States, it is
not specified who is the true holder of
them, the government or the people. The
invariable consequence of the Hegelian
myth is precisely the confusion between
the two58. Mill makes this confusion or
identification and, as we shall see, Walzer
seems to do as well.

Other justifications of the value of

the State and the duty of non-
interference: the consent of citizens
and the right to self-determination

Hence, instead of resorting to the

"domestic analogy" 59, we think it more
reasonable to use one of the following
two explanations. According to the first,
the sovereign rights of the States would
have a political foundation, they would
rest on their institutional character, that
is, they would belong to the State as a
participant in international society rather
than to the citizens who have delegated
their power to the rulers60; and the
duties correlative to them would be
obligations owed to international society
as a whole61. An expression of this
philosophy of the rights of the State is the
one offered by Rousseau when, in the face
of Hobbes's opinion, he asserts that “war
is not a relationship between man and
man but rather between the State and the
State, in which the individuals are only
incidental enemies, not as men, not even
as citizens, but as soldiers, not as
members of the country, but as its
defenders ”62. This also seems to be
Walzer's interpretation when he points
out that the international rights of States
derive only indirectly from authority over
their own citizens63.

The other possibility is to base the

international rights of the State on those
of individuals. For Fernando Tesó n it is
ethically inadmissible.

57
BEITZ, C., Political Theory and
International Relations, cit., P. 47.
58
TENACITY, F., Humanitarian
Intervention: an inquiry into law and
morality, cit., P. 75.
59
On the domestic analogy vid.
SUGANAMY, H.,The domestic analogy and
world order proposals, Cambridge
University Press, 1989.
60
KRATOCHWIL, F., «Sovereignity as
dominium: Is there a right of
humanitarian intervention? », Cit., P. 3. 4.
61
LUBAN, D., "Just War and Human
Rights", cit., P. 164.
62
ROUSSEAU, JJ, Social contract,
trans. by Fernando de los Ríos, Espasa-
Calpe, Madrid, 1990, Book I, Ch. IV, p. 44.
63
WALZER, M., "The moral standing
of the States", pp. 212-213.
The idea that States enjoy an autonomous
moral meaning and possess international
rights independent of the rights of the
individuals that populate them64 is
misplaced. Tesó n does not clarify the way
in which this connection or derivation of
the rights of the State is produced from
those of the citizens, although it seems
reasonable to think that it is moving in
the coordinates of the liberal tradition
that considers that the State is born and
You have rights to protect the civil and
political liberties of individuals.

It would, however, be possibleanother

way of connecting the rights of
individuals and those of the State that
would allow the State to continue to
recognize autonomy so as not to be
invaded, even when it violates individual
rights. It is the theory that the rights of
States derive from or are an aspect of the
autonomy of individuals, specifically their
freedom to associate with a view to
achieving common ends. Accordingly, the
States can be considered an association of
individuals with common aspirations and
interests, and therefore should not
intervene in them since they in fact
represent the people who exercise their
right of association.

However, it is one thing to affirm that the

State protects citizens' right of association
and quite another for the State itself to be
a free association, that is, a group of
people voluntarily associated for the
pursuit of certain ends. . For Beitz,
governments are not similar to free
associations of individuals, in that they
have full autonomy to form, join and
disaffiliate, and dissolve them according
to their own wishes and interests. Rather,
governments resemble a fixed element of
the social landscape, into which people
are born and within which - if not all - the
most fortunate are confined regardless of
whether they expressly agree to the terms
of the law. association. Despite this, It
could be argued that States possess
legitimacy thanks to their permanent
reaffirmation by citizens through voting
or even through political abstentionism if
it is interpreted as a form of tacit consent.
However, none of these acts can sustain
the legitimacy of political institutions.
These have a profound and persuasive
effect on the perspectives and
preferences of individuals living under
their control as they define the process by
which consent may or may not be
expressed and influence access to the
means necessary to participate. pair on it.

64
TESÓ N, F., Humanitarian
Intervention, cit., P. 16.
65
BEITZ, C., Political Theory and
International Relations, cit., Pp. 78-79.
The final part of Beitz's reasoning reveals
the impossibility of morally justifying the
State by invoking a criterion of formal
legitimacy such as the factual consent of
citizens manifested in the exercise of their
political autonomy. The latter would
allow –in Garzó n Valdés's terminology– to
speak of legitimation but not of
legitimacy, that is, of the conformity of
norms and acts with positive morality but
not with principles of critical morality. A
key element to explain it lies in the great
difference that, from an ethical point of
view, exists between the autonomy of the
individual and that of the State. What we
take into account to preach the moral
quality of individuals is the voluntary
acceptance of moral norms and their
compliance for non-prudential reasons.
Hence, respect for this autonomy is also
relevant even in the case of non-virtuous
people. On the contrary, and unlike
people, the legitimacy of a State can be
imposed heteronomously (Garzó n was
thinking of the imposition on South Africa
of the end of apartheid by foreign
pressure), the origin of the laws not being
relevant for the legitimacy judgment.
standards66.
But it is that, even in the event that we
grant to the autonomy of the States, to
their right of self-determination, a moral
status more or less equivalent to that of
individual autonomy, it would be
extremely difficult to protect under it the
violations of individual rights and
consequently, deprive legitimacy of
humanitarian interventions carried out in
defense of the latter. Just as when its
holder is the individual, the right to
autonomy does not confer unlimited
power but is constrained by the rights
and interests of other individuals, it
seems reasonable to assume that the right
to collective self-determination is also
limited by other moral considerations. ,
including individual rights67.

Therefore, the only argument that would

allow the rejection of the interventions
byRepresenting a violation of the
autonomy of a State involves attributing
to the right of self-determination not only
the character of a true human right68, but
also a greater value than to individual
rights. To sustain this claim, Tesó n points
out, non-interventionists must
demonstrate that there is something in
self-determination that goes beyond the
obligation to respect.

66
GARZÓ N VALDÉ S, E., «Interventionism
and Paternalism», cit., Pp. 388-389.
67
McCMAHAN, J., "Intervention and
Collective Self-Determination",
Ethics and International Affairs, vol.10,
1996, p. 17.
68
Vine. in this regard CASSESE, A., Self-
determinationf of peoples: a legal
repraisal, Cambridge University Press,
1996; LÓ PEZ CALERA, NM, Are there
collective rights ?, cit., Pp. 37-45; id,
Nationalism: guilty or innocent, Tecnos,
Madrid, 1995, pp. 54 ss; RUIZ RO-
DRÍGUEZ, S., The theory of the right of
self-determination of peoples, Center for
Political and Constitutional Studies,
Madrid, 1998.
individual rights69 or, at the very least,
that it makes their injury preferable to the
loss of political and territorial control.
While from the postula-For two
individualistic philosophical and political
individuals of Western culture, it is very
difficult to sustain a similar thesis, in
recent times it seems to have gained a
certain force outside the West, in
countries born of decolonization. In these,
not only has an interpretation of human
rights favorable to the right of self-
determination of the peoples
predominate or, in any case, more
collectivist or group compared to the
more individualistic of Western
countries70, but also, to At times,
despotic internal control has been
considered preferable to the more benign
and liberal forms of external control71. Of
the latter, it could be said that, like
Trostsky, they would consider the fascism
of a dominated country to be preferable
to the democracy of a dominant country.

As Tesó n explains very well, in this

cultural sphere a relativistic
interpretation of article 2 of the Colonial
Declaration of Independence approved by
the General Assembly of the United
Nations in 1960 would have had a lot of
relevance. This precept proclaims that “all
peoples have the right to self-
determination; By virtue of this right,
they freely determine their political status
and freely pursue their economic, social
and cultural development ”. Faced with
the European interpretation that
considers that internal self-determination
requires the establishment of democracy
and respect for the human rights of all
people72, the relativist interpretation
considers the right of self-determination
as the least obvious aspect of the
principle. of non-intervention, prohibiting
any State to intervene in the political and
cultural elections of free peoples.
According to this exegesis, states would
have the right to create whatever form of
government they want, no matter how
repressive, and claims on human rights
invoked by other states could not
interfere with the enjoyment of this
right73. This would not only mean, as JS
Mill argued, separating the au-

69
TESÓ N, F., Humanitarian Intervention,
cit., P. 31.
70
VALLESPÍN, F., “Humanitarian
intervention: moral or political?”,
Western Magazine, nº 236-237, January,
2001, p. 54.
71
MAcMAHAN, J., "Intervention and
Collective Self-Determination", cit., P. 7.
According to Morris, this point of view
would be a relatively recent phenomenon.
Until the last century, the dominant rule
among most peoples - including
Europeans - was to consider a just and
efficient government under a foreign
power to be preferable to an unjust and
inefficient government under its own
government. Vine. MORRIS, C., An Essay
on the Modern State, Cambridge
University Press, Cambridge, 1998, ch. 8.
72
Vine. REISMAN, M., "Coercion and self-
determination: Contructing Charter
Article 2 (4)", American Journal of
International Law, 78, 1984, pp. 642-644.
73
Vid, CASSESE, A., "The Helsinki
Declaration and Self-Determination" in
BUERGENTHAL, T. (ed), Human Rights,
International Law and The Helsinki
record, Montclair, Allanheld, 1977, pp. 83-
84.
not to determine political freedom, but,
firstly, to interpret it in a quite different
sense, as the affirmation and protection of
community integrity, and, secondly, to
sustain its legitimacy on a relativistic
interpretation of international ethical
pluralism. The combination of these two
novelties makes Walzer's work a must-
see.

A communitarian reading of the

value of the State: the rights of
sovereignty and political
independence as protections of
political communities

The theses defended by this author, both

in Just and Injust wars and in other
subsequent works, have become one of
the main references in the current debate
on the legitimacy of humanitarian
interventions. Walzer tries to convince us
that states have similar rights to
individuals and to save the core of Mill's
antipaternalistic argument, trying not to
make the mistake of identifying the
people with the state or its government.
The first of these intentions is palpable
from the beginning of the analysis of the
international legal order and the wars of
aggression or intervention that it
undertakes in Just and Injust Wars, by
making it clear that although the holder of
the rights to territorial integrity and
political sovereignty is the state, They
derive and acquire their force from the
rights of the men and women who
compose them74. However, despite this
initial statement, Walzer's speech
proceeds amid a certain darkness that
seriously casts doubt on the achievement
of the stated objectives.

Thus, one of the most prominent

elements of confusion revolves around
the rights of individuals on which the
rights of territorial integrity and
independence of States would be based.
At certain moments, Walzer invokes life
and liberty, adding that the rights of
states are simply their collective form75.
However, such a statement seems to be
somewhat obscured by the description of
the aggression against a State as a
challenge, not only of the lives and
freedoms of citizens, but also "of the
common life that they have forged",
including their political association .
Moreover, Walzer goes so far as to affirm
that “the moral authority of any particular
State depends on the reality of the
common life that it protects”, to the point
that “if there is no common life, or the
State does not defend it already existing,
its own defense cannot have moral
justification ”. In short, “if the citizens

74
WALZER, M., Just and injust wars,
cit., P. 53.
75
Ibid, p. 54.
they did not have the moral right to
choose their form of government and
configure the policies that shape their
lives, external aggression would not be a
crime ”76.

On what human rights, then, are the

rights of States based? In individual civil
rights? In that of citizens to form a
political community? In their right to
form a community not only political but
also moral, that is, a community defined
by its own way of life? In both? Walzer
seems to clarify these doubts in The
Moral Standing of the States, where he
goes on to argue that the sovereign rights
of the State do not derive from individual
rights to life and liberty, but "from the
rights of current men and women to live
as members of a historical community
and express their inherited culture
through political forms that function
satisfactorily among themselves ”77. In
reality, it does not invoke these rights to
refer to those of the State directly, but
rather to indicate the moral foundation of
the political community that is at its
base78. But if, as we saw, Walzer
subordinates the moral value of the State
to the protection of that community or
common life, those rights are also,
ultimately, the moral foundation of the
rights of territorial integrity and political
independence of the State. .

Walzer seems to be wanting to tell us that,

while it isIt is true that, as contractualism
and classical liberalism have been
defending, the State, as a political and
legal category, is an instrument created
for the protection of the civil rights of
individuals, the different States that
currently exist do not only play that
function, but also that of preserving a
certain way of life to which citizens no
longer as members of the human race but
as members of a specific historical and
cultural community have the need and
therefore the right to belong. Hence, not
any State serves this function, but only
one that citizens can consider the result of
their rights to choose the form of
government and shape the policies that
affect their lives and that preserve their
community integrity. estuary, even if it is
one that protects the rights to life and
liberty worse. This means recognizing, as
Kymlicka points out, that liberal states
exist not only to safeguard the normal
rights and opportunities of individuals,
but also to protect people's cultural
belonging. Hence, one of the functions of
borders, of the separation between States,
is to recognize that people belong to
separate cultures79, since if we did not
recognize any distinction between
members and

76
Ibid.
77
WALZER, M., "The moral standing
of the States", cit., P. 211.
78
Ibid, p. 210.
79
Vine. KYMLICKA, W.,Multicultural
citizenship. A liberal theory of minority
rights,trad. de C. Castells, Paidó s,
Barcelona, 1995, p. 175.
strangers we would have no reason to
form and maintain political
communities80.

The experience of Armenians, Kurds,

Palestinians or Tibetans would confirm,
in Walzer's opinion, that peoples need the
State to ensure their survival and to
support and reproduce their cultural life.
Hence it is difficult to separate such a
state from the nation for whose sake it
was created. Separating ethnicity or
nationality from citizenship only seems
possible in immigrant societies such as
North America, but it is politically and
morally much more difficult in countries
where ethnic groups are territorially
delimited and established since ancient
times. Ultimately, in Walzer's view, the
nation-state possesses what could be
called a “moral utility” 81. This means
that if the State's link to a certain national
or cultural community is not maintained
in some way, the very idea of States and
of an international society would cease to
make sense and could only give way to
the global State, to a world without
particular meanings or political
communities. And this is a kind of moral
maximalism that, as we will see, is far
from being defended and that is also not
very feasible in the foreseeable future82.
Hence, we must accept as a stable feature
of human life that individuals belong to
different historical and cultural
communities, that community and
cultural diversity are a value and that
States, as protectors of community
belonging and diversity cultural through
the establishment of closed
environments, they are also a good83.
Unlike Taylor or Sandel, Walzer seems to
bet on the presence in the nation and not
only in the different national subgroups
(churches, neighborhoods, family, unions,
etc.) with deep enough cultural and
historical ties to create a unique identity
that is worth defending. across borders.
Walzer is convinced that the State, the
political community “is the closest thing
to a world of common meanings.
Language, history and culture come
together (here more than anywhere else)
to produce a collective consciousness ”84.
the political community “is the closest
thing to a world of common meanings.
Language, history and culture come
together (here more than anywhere else)
to produce a collective consciousness ”84.
the political community “is the closest
thing to a world of common meanings.
Language, history and culture come
together (here more than anywhere else)
to produce a collective consciousness ”84.

On the other hand, as can be understood

in a work on the justice of wars, Walzer
considers the State in its external
dimension, within the framework of
international society, a perspective that
seems to reveal

80
WALZER, M., The spheres of
justice, A defense of pluralism and
equality, trans. by Heriberto Rubio, Fondo
de Cultura Econó mica, Mexico, 1997, p.
75.
81
WALZER, M., "Responte to Bader",
Political Theory, vol.23, nº2, May, 1995, p.

248.
82
WALZER, M., Just and injut wars,
cit., P. 47.
83
Ibid, p. 51.
84
WALZER, M., The spheres of
justice, cit., P. 41.
more differences than similarities
between states and interpret in a very
specific sense both their rights and the
role of their political institutions. More
specifically, for Walzer, the State is “the
arena in which self-determination is
worked”, a space that provides the
peoples with autonomy and security to
develop and advance on their own, and
the rights of sovereignty are the means to
enforce borders, that is, the barriers that
allow people to feel secure not only in
their life and freedom but, fundamentally,
in their way of life. This communitarian
interpretation of popular sovereignty
rises, as Habermas shows, the aspect of
external sovereignty, moving to a second
term, as we will see in the next section,
the question of the legitimacy of the
internal order. Democratic self-
determination does not mean here the
symmetrical participation of free and
equal citizens in the decision-making and
legislation process, but rather the
collective self-assertion and self-
realization of homogeneous or
sympathetic members of a community85.
Understood as the self-assertion of one's
own way of life in the face of foreigners
who may endanger it, self-determination
would become both an almost
insurmountable barrier against
interventions and the foundation of the
right of States to choose their policies. of
admission of immigrants. This last right
would be found at the core of the
independence of a community as it
"represents the deepest meaning of self-
determination" 86. Democratic self-
determination does not mean here the
symmetrical participation of free and
equal citizens in the decision-making and
legislation process, but rather the
collective self-assertion and self-
realization of homogeneous or
sympathetic members of a community85.
Understood as the self-assertion of one's
own way of life in the face of foreigners
who may endanger it, self-determination
would become both an almost
insurmountable barrier against
interventions and the foundation of the
right of States to choose their policies. of
admission of immigrants. This last right
would be found at the core of the
independence of a community as it
"represents the deepest meaning of self-
determination" 86. Democratic self-
determination does not mean here the
symmetrical participation of free and
equal citizens in the decision-making and
legislation process, but rather the
collective self-assertion and self-
realization of homogeneous or
sympathetic members of a community85.
Understood as the self-assertion of one's
own way of life in the face of foreigners
who may endanger it, self-determination
would become both an almost
insurmountable barrier against
interventions and the foundation of the
right of States to choose their policies. of
admission of immigrants. This last right
would be found at the core of the
independence of a community as it
"represents the deepest meaning of self-
determination" 86. but rather the
collective self-assertion and self-
realization of homogeneous or
sympathetic members of a community85.
Understood as the self-assertion of one's
own way of life in the face of foreigners
who may endanger it, self-determination
would become both an almost
insurmountable barrier against
interventions and the foundation of the
right of States to choose their policies. of
admission of immigrants. This last right
would be found at the core of the
independence of a community as it
"represents the deepest meaning of self-
determination" 86. but rather the
collective self-assertion and self-
realization of homogeneous or
sympathetic members of a community85.
Understood as the self-assertion of one's
own way of life in the face of foreigners
who may endanger it, self-determination
would become both an almost
insurmountable barrier against
interventions and the foundation of the
right of States to choose their policies. of
admission of immigrants. This last right
would be found at the core of the
independence of a community as it
"represents the deepest meaning of self-
determination" 86. Self-determination
would become both an almost
insurmountable barrier against
interventions and the foundation of the
States' right to choose their policy of
admitting immigrants. This last right
would be found at the core of the
independence of a community as it
"represents the deepest meaning of self-
determination" 86. Self-determination
would become both an almost
insurmountable barrier against
interventions and the foundation of the
States' right to choose their policy of
admitting immigrants. This last right
would be found at the core of the
independence of a community as it
"represents the deepest meaning of self-
determination" 86.

Hence, following the well-known

expression of Kymlicka, we can consider
the rights of independence and political
sovereignty as the external protections of
peoples. In a similar way to how, to
preserve their identity, certain minorities
need protections against the State,
political communities, States, need
sovereign rights to protect the cultural
identity of their members. Furthermore,
Kymlicka is convinced that the acceptance
by the liberal theory that the world is
composed of separate states, with the
right to determine who can cross their
borders (to obtain citizenship, to
intervene in an internal conflict, etc.) can
only be justified by appealing to the same
class of values that underpin the
differentiated rights according to the
group within each State87.

The not only communitarian but also

liberal vision of the State as, almost
exclusively, the protective circle of a
people against its “external enemies”, is
projected on the way of conceiving the
contract in which they rest.

85
HABERMAS, J., The inclusion of the
other, trans. de C. Velasco and G.Vilar,
Paidó s, Barcelona, 1999, pp. 127-129.
86
WALZER, M., The spheres of
justice, cit., P. 73.
87
KYMLICKA, W., Multicultural
Citizenship, cit., P. 174.
san your rights. The same is basedin a
special mode of consent that gives life to a
communitarian state: “over a long period
of time, shared experiences and different
kinds of cooperative activities form a
common life (common life). The contract
is a metaphor for a process of association
and reciprocity whose underlying
character is intended to defend the State
against external aggressions. This
protection does not extend only to
individual life and liberties but also to
common life and liberty, to the
independent community that they have
formed for which individuals are
sometimes sacrificed ”88. As he will also
say later, “the community is sustained in
the deepest way in a contract, a Burkian
contract between the living, the dead and
those who have not yet been born” 89. So
there is no what - subscribing to a
terminology coined by H. Arendt - Luban
calls a vertical contract between the
people and the State90. On the contrary,
on which the rights of the States rest is
the same that gives life to a community: a
tacit contract, which is simply a metaphor
to refer to the way in which, for years and
centuries, a human group, a people , a
nation, acquires its own identity, its
common life91.

An explanation of this image of the State,

of the contract on which its rights are
based and of the same content and
function of the same, can be found in the
force of realism that - not only in his
theory of just wars but also in In general,
all his later philosophy - subscribes this
author. A realism that, in his reflections
on distributive justice, has led him to
radical particularism92 and, in problems
related to the morality of international
relations, to a justification of the States
somewhat attached to the status quo and
to a considerable defense of ethical-
cultural relativism. Not surprisingly,
Walzer subscribes to a vision of
international justice encrypted in a
corrected version of what he calls "the
legalistic paradigm." It defends the classic
vision of international society as a
community made up of States and not
individuals, and supported by the
principle of non-intervention. In an
association of this type, the moral force of
sovereign rights does not rest on the
individual and his rights, but on the very
value of the State as a space that enables
and guarantees the political and cultural
self-determination of a people or nation.
From this perspective, it would seem that
cultural or national communities can only
affirm their respective but in the very
value of the State as a space that enables
and guarantees the political and cultural
self-determination of a people or nation.
From this perspective, it would seem that
cultural or national communities can only
affirm their respective but in the very
value of the State as a space that enables
and guarantees the political and cultural
self-determination of a people or nation.
From this perspective, it would seem that
cultural or national communities can only
affirm their respective

88
WALZER, M., Just and injust wars,
cit., P. 54.
89
WALZER , M., "The moral standing
of the States", cit., P. 211.
90
LUBAN, D., "Just War and Human
Rights", cit., P. 169.
91
On the contract as a metaphor Vid.
JI MARTÍNEZ GARCÍA, The judicial
imagination, Debate, Madrid, 1990, pp.
175-76.
92
WALZER, M., The spheres of
justice., Cit., P. 12.
Existence and singularity in the
antagonistic role of sovereign subjects of
international law93.

Walzer's speech rests on very strong

premisesthat cannot help but provoke
doubts and criticisms. The former revolve
around the ambiguity of the relationships
it establishes between the State and
society. As Bader points out, despite
representing one of the most liberal and
pluralistic versions of communitarianism,
in Walzer we can nevertheless find the
assiduous mix between the linguistic,
cultural, religious, ethnic, national and
political communities present in all the
communitarian justifications of
exclusion94. Walzer is thus accused of
self-servingly overlapping - in a
conservative way - the demos and the
ethnos, of blurring the importance of
cultural, ethnic or linguistic identities to
defend a policy of closed borders95.
Unlike other communitarians, Walzer
identifies the state with the political
community and the latter with the
historical and cultural community, even
going so far as to establish an analogy
between countries and neighborhoods,
clubs or families96, something that can
only be imagined on the basis of ethnic or
cultural homogeneity that is very difficult
to find in the past and even more so in
today's multicultural states. Therefore, if
it is recognized that States are not
culturally homogeneous or democratic
political communities, then the ethical
legitimacy of their exclusive right to
community self-determination is
seriously undermined97.

Second, the value that Walzer attributes

to cultural diversity and the protection of
cultural diversity that different nation-
states provide through closed borders is
also questioned. It could be answered to
Walzer that not all cultural distinctions
can be defended from a liberal-
democratic perspective (for example,
racism, sexism, elitism, etc.) and that it is
paradoxical to present the State as the
defender of the Cultural pluralism since,
adopting a historical perspective, it is
verified that, both internally and
externally, the State has been a form of
repressive political association of cultural
diversity98.
93
HABERMAS, J., The inclusion of the
other, cit., P. 128.
94
BADER, V., “Citizenship and
exclusion”, Political Theory, 23, nº2, May,
1995, p.

217.
95
BÉ JAR, H., "The folds of openness:
pluralism, relativism and modernity" in

GINER, S., and SCARTEZZINI, S (eds),

Universality and difference, Alianza,
Madrid, 1996, p. 177.
96
WALZER, M., The spheres of
justice, cit., P. 48.
97
BADER, V., "Citizenship and
exclusion", cit., P. 218.
98
Ibid, p. 219-220.
The third criticism focuses on the
rejection that, together with the
guardianshipOf fundamental rights, the
moral value of the State also rests on the
protection of the integrity of a given
cultural community. While the moral
status of rights seems sufficiently
accepted, it is not so obvious that the
same is true of cultural integrity. Because
what value is there in cultural belonging
so that its defense is erected as a reason
for being and part of the legitimacy of the
State? It could be answered that it
constitutes a need or, at least, a legitimate
expectation of individuals. The need for
cultural identity - Kymlicka affirms - lies
in the fact that it provides an anchor for
people's self-identification and for the
security of a stable belonging without the
need for any effort99. Cultural belonging
would therefore be belonging without
achievement and, therefore, also without
risk100. Hence even a liberal like Rawls
recognizes that cultural ties are often too
strong to abandon and that this is not a
morally irrelevant fact. Hence, the
elaboration of a theory of justice must
take into account that people are born in
a certain society and culture and are
expected to lead a full life within it101.

Cultural sovereignty

We saw earlier how Mill denied the

legitimacy of the interventionsn appealing
to the more political than moral priority
of the right of self-determination of the
peoples with respect to the effective
enjoyment of individual freedoms. The
latter must always be the result of the
struggle and virtue of a people, not the
product of an external imposition. In his
view, only certain communities can be
free in a lasting way: those prepared for
freedom, that is, those that have evolved
culturally to value and claim it and
struggled politically to achieve it102. It
seems, therefore, that the reasons for
respecting said political autonomy rest
more on pragmatic considerations and on
a certain philosophy of the cultural and
moral evolution of peoples.
99
KYMLICKA, W., Multicultural
Citizenship, cit., P. 128-130. Vine.
Similarly KYMLICKA, W., "The value of
cultural merbeship" in Liberalism,
Community and culture, Clarendon,
Oxford, 1991, pp. 162-181.
100
Vine. RIVERA, JA, "Multiculturalism
versus liberal cosmopolitanism" in CRUZ,
M., (comp.), Tolerancia o barbarie, Gedisa,
Barcelona, 1998, pp. 155-186, especially,
pp. 176-178.
101
RAWLS, J., Political Liberalism,
Columbia University Press, 1993, p. 93.
102
Mill wrote that “if a people does
not love enough the freedom to be able
to wrest it from their simple domestic
oppressors, the freedom that is granted to
them by hands other than theirs will have
nothing real, nothing permanent ”. MILL,
JS, "A few words about non intervention",
cit., P. 122.
that in a possible rejection of the universal
or cross-cultural value of democracy
andcivil liberties.

But Mill's argument would point to a

stronger thesis than, perhaps only
hisutilitarian creedand, above all, his
Eurocentrism103, prevented him from
seeing: that the recognition of peoples as
subjects with autonomy to decide their
form of government presupposes
different conceptions not only of the good
but also of political justice; that the
presence of reasons in a community for
not claiming civil and political liberties
should not be interpreted negatively as a
symptom of immaturity or cultural
underdevelopment, but positively as the
presence of a moral pluralism that an
international society –not out of resigned
realism but in a tolerant way - must
respect. Hence, it may appear that
humanitarian interventions coercively
impose on other cultures and civilizations
the Western vision of human rights or, at
least, of what constitute intolerable
violations of them. As is known, Some
interventions –especially those that have
been developed outside the protection of
international law– have presented
themselves as defenders of the values of
civilization, thus increasing the feeling
that Western countries have embarked on
a cultural imperialism brimming with
moral pride. in which the western is
confused with the universal104. In this
sense, the harshness with which Ferrajoli
condemns the intervention in Kosovo is
striking, as he perceives in it the symptom
of a new fundamentalism with which the
West threatens to impose its values on
the rest of the world105. thus growing
the feeling that Western countries have
embarked on a cultural imperialism
brimming with moral pride, in which the
Western is confused with the
universal104. In this sense, the harshness
with which Ferrajoli condemns the
intervention in Kosovo is striking, as he
perceives in it the symptom of a new
fundamentalism with which the West
threatens to impose its values on the rest
of the world105. thus growing the feeling
that Western countries have embarked on
a cultural imperialism brimming with
moral pride, in which the Western is
confused with the universal104. In this
sense, the harshness with which Ferrajoli
condemns the intervention in Kosovo is
striking, as he perceives in it the symptom
of a new fundamentalism with which the
West threatens to impose its values on
the rest of the world105.

The struggle for the recognition of the

equality of all peoples and civilizations,
the defense of their right to have their
own and therefore different cultural
identity, have found in ethical-cultural
realtivism one of their best allies. As
Sebreli points out, this has the
appearance of being the most egalitarian,
just, democratic, pluralistic and tolerant
position since it denies the hierarchy of
values and the inferiority and superiority
of peoples as ethnic and racist
prejudices106. This would explain why
the more or less implicit defense of
ethico-cultural relativism has also ended
up becoming a new and attractive
argument with which some States try to
cling to the principle.

103
Mill only recognizes the validity of the
principle of non-intervention in relations
between civilized nations such as that of
European Christianity, admitting on the
contrary the conquest of barbarian
nations such as Algeria or India. Ibid, pp.
118-119.
104
Vine. CHOMSKY, N., "" In the name of
principles and values "" in The new
military humanism, Common Rough
Press, Monroe, 1999, pp. 1-23.
105
FERRAJOLI, L. "Guerra" etica "e
diritto", Ragion Practica, 13, 19L99, p.
124.
106
SEBRELI, JJ, The siege of modernity.
Critique of cultural relativism, Ariel,
Barcelona, 1992, p. 66.
that the protection of human rights
belongs to its internal jurisdiction107,
and to reject, therefore, the possibility of
a right of humanitarian interference.
Hence, in favor of the rule of non-
intervention a certain recognition of the
right to difference is adduced, while, on
the contrary, in the current trend of
generalizing the right of interference
there is a reappearance of Eurocentrism
that confuses the western with the
universal108.

However, a significant number of

theorists and governments of some
countries appeal to ethical-cultural
relativism for something more than
rejecting the international community's
control over the recognition,
interpretation and application of human
rights existing within their borders or to
to achieve, through the mechanism of
reservations to international treaties and
texts, an “international human rights
regime à la carte” 109. In recent years,
they have been promoting a process
aimed at qualifying and even attacking
the universality of human rights and the
international legal norms that recognize
them. The starting point of this process
would be the World Conference on
Human Rights which, under the auspices
of the UN, was held in Vienna in 1993.
Although the reference to cultural,
historical or religious peculiarities would
finally have been very circumscribed,
during it, some Asian and African States
as well as Cuba would have managed to
introduce, for the first time in the short
history of international human rights
law , a reference to cultural relativism.
Two years later, the Copenhagen World
Conference for Social Development
adopted a declaration and a program of
action that repeatedly linked references
to human rights with “full respect for
different ethical and religious values. and
to the cultural background of individuals
”. These and other data would thus warn
of the difficulties that currently would
entail adopting the Universal Declaration
of Human Rights by consensus. Far from
diminishing,

107
BAYEFSKY, AF, “Cultural Sovereignity,
Relativism, and International Human
Rights: New Excuses for Old Strategies”,
Ratio Juris, vol.9, nº1, March, 1996, p. 43.
108
VELASCO ARROYO, JC, "Yesterday and
today of Kantian cosmopolitanism",
Isegoría, 16, 1997, p. 106. Along these
lines, it has been stated that, in the
absence of an agreement on the principles
that would govern the right to
humanitarian intervention, to allow
humanitarian intervention in such
circumstances is to accept that “the
interventions would always be based on
the cultural preferences of those who
have the power to carry them out ”.
BROWN, C., International reations theory:
New Normative Approaches, Harvester
Wheat sheaf, Hemel Hempstead, 1992, p.
113.
109
FELIÚ MARTÍNEZ, L., «Islam and
Human Rights: From the Umma to the
Individual» in BLANC ALTEMIR, A. (ed),
The Mediterranean: A common space for
cooperation, development and
intercultural dialogue, Tecnos, Madrid ,
1999, p. 163.
ethical and philosophical, they would
have continued to grow day by day110.
For this reason, Hun- tington considers
that the Universal Declaration of Human
Rights and international Covenants are
less relevant to much of the planet than
during the immediate post-World War II
era111

This questioning of the universality of

human rights centered on respect for
cultural peculiarities is, however, nothing
new. Simultaneously with the drafting
and approval of the Universal Declaration,
the predominant Western and liberal sign
that prevails behind the universal
language of the text approved in 1948 and
even after the very notion of human
rights will begin to be denounced112. If at
first these criticisms had as their object
the postponement of economic, social and
cultural rights in favor of civil and
political rights, in the last decade they
have focused on the ignorance of the
religious, historical and cultural
peculiarities that lead to - The abstract,
anthropocentric and secular universalism
of the Declaration and the Covenants
varies implicitly. This denial or at least
corrective spirit of the dominant
Eurocentrism in the international human
rights regime has been evident both in the
preparation of some regional human
rights texts (such as the Arab Charter of
Human Rights of 1994 and the Charter
Banjul 1981) as in the non-existence to
date of a document of this type in Asian
countries. All this would explain that the
oscillation between universalism and
relativism is present today in
supranational institutions such as the UN,
UNESCO, FAO, UNICEF, WHO, the Red
Cross, etc., with greater drama than
ever113.

The growing receptivity to relativist

language in international forums would
thus highlight the ethical and political
irrelevance of the standardization
introduced by the globalization process
so characteristic of our time114. The fact
that in aspects such as the economy,
consumption patterns, clothing, etc., the
world is increasingly unified and
homogenized, does not seem to have
translated into a process of convergence
towards something
110
BAYEFSKY, AF, "Cultural Sovereignity,
Relativism, and International Human
Rights", cit., P. Four. Five.
111
HUNTINGTON, SP, The clash of
civilizations and the reconfiguration of
the world order, trans. by JP Tosaus
Abadía, Paidó s, Barcelona, 1997, p. 233.
112
Vine. PANIKAR, R., "Is the notion of
human rights a western concept?",
Diogenes, 120, 1982, pp. 75-102.
113
SCARTEZINI, R., "The reasons for
universality and difference", in GINER, SY
SCARTEZINI, R. (eds), Universality and
difference, cit., P. 26.
114
On the relationship between
globalization and universalization vid. DE
LUCAS, J., «Multiculturalism and Human
Rights» in LÓ PEZ GARCÍA, JA and DEL
REAL, A (eds), Rights: between ethics,
power and law, Dykinson-University of
Jaén-Ministry of Labor and Social Affairs,
Madrid, 2000, p. 73.
as well as a universal civilization, that is,
at the confluence towards values, beliefs,
orientations, practices and institutions
common to all peoples and persons
throughout the world115. On the
contrary, we are witnessing,
paradoxically, a race towards difference,
“a rabid desire to distinguish and
separate” 116, an exaltation of cultural
peculiarities and national identities that –
although it has frequently resulted in
conflicts ethnic border-breakers - in
others it seems to lead to an exaltation of
the moral value of the community or
civilization itself, and, as a consequence,
of the State as its protective barrier. And,
what is more important, this neo-
tribalism involves a shift towards
relativism in the field of values since each
tribe claims to have its own conception of
the good,

But in what way and to what extent does

cultural relativism question the
legitimacy of humanitarian interference?
The answer will depend both on what we
understand by it and on the kind or scope
of the violation of human rights that
humanitarian interference would require
or justify. Regardless of the answer we
give to both questions, it seems possible
to agree that relativism can become an
obstacle to humanitarian interventions to
the extent that it offers a coherent and
reasonable denial of what - following
Garzó n Valdés - We could consider their
material presupposition: the universal
validity of a shared ethical threshold,
despite the cultural differences and the
lifestyles of each people118.

Well, the denial of this premise would not

be a thesisdefended by all forms of
ethical-cultural relativism, but exclusively
by the strongest version of it: the one that
is not limited to verifying the coexistence
of a plurality of value systems and
conceptions of the good by virtue of the
differences. cultural, political, religious or
social traditions (descriptive relativism),
nor to show their skepticism regarding
the possibility of finding norms to judge
them (meta-ethical relativism) but rather
the one that explains this diversity by
affirming that values and judgments are
endogenous and incommensurable
because they do not have meaning and
validity beyond the social or cultural
context in which they originated, so there
are no objective and universal criteria to
judge them and, even if they existed, we
would be too conditioned

115
HUNTINGTON, SP, The clash of
civilizations and the reconfiguration of
the world order, cit., P. 65.
116
SCARTEZINI, R., "The reasons for
universality and difference", cit., P. 32.
117
CONTRERAS PELÁ EZ, F., "Three
versions of ethical-cultural relativism",
Person and Law, 38, 1998, p. 71.
118
GARZÓ N VALDÉ S, E., «Interventionism
and Paternalism», cit., P. 397.
for our own culture and societyin order to
discover them (normative relativism)
119.

The defense of this type of relativism was

widespread in the earlydecades of the 20th
century, between anthropologists like
Malinoski or Levi-Strauss and
philosophists like Wittgenstein. Especially
in the former, this theory is lit with a
strong spirit of tolerance, as an energetic
reaction against the Eurocentric
evolutionism of the ethnologists of the
late nineteenth century. Imbued with
strong Comtian positivism, evolutionary
theory had argued that human societies
progressed from a primitive or savage
state to a modern one. It was, therefore, a
theory defending the superiority of
Western cultural values and parameters
and, therefore, with certain racist
overtones120. The reaction against it will
operate through a relativistic and
contextualist turn that perceives each
culture as an irrefutable framework for
research and understanding, which
excludes cross-cultural evaluations and
comparisons, and abandons the idea of
progress, of a humanity that walks
together in a single direction towards a
single common goal of cultural, political
and ethical development121. This
relativism also informs the position of
anthropologists in relation to the problem
of the universality of human rights, not
only at the theoretical level but even in
their collaboration with international
organizations, as in the famous report
prepared by the American
Anthropological Association. for the UN
Commission on Human Rights122. The
philosophical respectability of this point
of view that anthropologists had been
developing and applying since the
beginning of the century will be
reinforced by the thinking of the second
Wittgenstein, that of Frazer's
Philosophical Investigations and
Obsesions to the Golden Branch123. of a
humanity that walks together in a single
direction towards a single common goal
of cultural, political and ethical
development121. This relativism also
informs the position of anthropologists in
relation to the problem of the universality
of human rights, not only at the
theoretical level but even in their
collaboration with international
organizations, as in the famous report
prepared by the American
Anthropological Association. for the UN
Commission on Human Rights122. The
philosophical respectability of this point
of view that anthropologists had been
developing and applying since the
beginning of the century will be
reinforced by the thinking of the second
Wittgenstein, that of Frazer's
Philosophical Investigations and
Obsesions to the Golden Branch123. of a
humanity that walks together in a single
direction towards a single common goal
of cultural, political and ethical
development121. This relativism also
informs the position of anthropologists in
relation to the problem of the universality
of human rights, not only at the
theoretical level but even in their
collaboration with international
organizations, as in the famous report
prepared by the American
Anthropological Association. for the UN
Commission on Human Rights122. The
philosophical respectability of this point
of view that anthropologists had been
developing and applying since the
beginning of the century will be
reinforced by the thinking of the second
Wittgenstein, that of Frazer's
Philosophical Investigations and
Obsesions to the Golden Branch123.
political and ethical 121. This relativism
also informs the position of
anthropologists in relation to the problem
of the universality of human rights, not
only at the theoretical level but even in
their collaboration with international
organizations, as in the famous report
prepared by the American
Anthropological Association. for the UN
Commission on Human Rights122. The
philosophical respectability of this point
of view that anthropologists had been
developing and applying since the
beginning of the century will be
reinforced by the thinking of the second
Wittgenstein, that of Frazer's
Philosophical Investigations and
Obsesions to the Golden Branch123.
political and ethical 121. This relativism
also informs the position of
anthropologists in relation to the problem
of the universality of human rights, not
only at the theoretical level but even in
their collaboration with international
organizations, as in the famous report
prepared by the American
Anthropological Association. for the UN
Commission on Human Rights122. The
philosophical respectability of this point
of view that anthropologists had been
developing and applying since the
beginning of the century will be
reinforced by the thinking of the second
Wittgenstein, that of Frazer's
Philosophical Investigations and
Obsesions to the Golden Branch123. This
relativism also informs the position of
anthropologists in relation to the problem
of the universality of human rights, not
only at the theoretical level but even in
their collaboration with international
organizations, as in the famous report
prepared by the American
Anthropological Association. for the UN
Commission on Human Rights122. The
philosophical respectability of this point
of view that anthropologists had been
developing and applying since the
beginning of the century will be
reinforced by the thinking of the second
Wittgenstein, that of Frazer's
Philosophical Investigations and
Obsesions to the Golden Branch123. This
relativism also informs the position of
anthropologists in relation to the problem
of the universality of human rights, not
only at the theoretical level but even in
their collaboration with international
organizations, as in the famous report
prepared by the American
Anthropological Association. for the UN
Commission on Human Rights122. The
philosophical respectability of this point
of view that anthropologists had been
developing and applying since the
beginning of the century will be
reinforced by the thinking of the second
Wittgenstein, that of Frazer's
Philosophical Investigations and
Obsesions to the Golden Branch123.

A realistic and moderate defense of

normative relativism would focus on its
usefulness in explaining some of the most
characteristic features of international
legality and morality: the absence of
centralized mechanisms that allow
settling demands related to human rights,

119
Vid, among others, FRANKENA, WF,
Ethics, Englewood Cliffs, New Jersey,
1973, p.

109.
120
RENTELN, AD, “Relativism and the
search for Human Rights”, American
Anthro-

plogist, 90, 1988, p. 57.

121
CONTRERAS PELÁ EZ, F., "Three
versions of ethical-cultural relativism",
cit, pp. 76-77.
122
In a line very similar to that of
nineteenth-century antirevolutionary
thought (Burke, De Maistre, etc.), Levi-
Staruss points out that “the great bills of
rights have this strength and this
weakness of enunciating the ideal, the fact
that is too often forgotten man does not
realize his nature in an abstract humanity
but in traditional cultures ”. LEVI-
STRAUSS, C., Race and culture, trans. de
A.Dupart, Cá tedra, Madrid, 1996, p. fifty.
123
CONTRERAS PELÁ EZ, F.,
"Three versions of
r e l a t i v i s m ethico-cultural ”, ci., p.
94.
subordination of the observance of
international human rights law to the will
of the States, or the existence of different
interpretations of the right of self-
determination of the peoples124. A
stronger and ideological defenseIt is the
logic of normative relativism –but
curiously widespread among a good
number of anthropologists, jurists and
philosophers– that is considered the
doctrine that best promotes the value of
tolerance. With its exaltation of diversity
and the absence of universal values with
which to judge it, relativism would imply
its own morality: that of respect for the
different dominant value systems in
different cultures and societies.

It is in these coordinates that Walzer's

rejection of a broad concept of
humanitarian intervention seems to be
situated. It would take as its basis a
sophisticated version of ethical-cultural
relativism such as the theory of the
double legitimacy of States. According to
this theory, a State can enjoy a
presumption of legitimacy in
international society and be illegitimate
in its internal sphere. By means of this
dualism, Walzer tries to support a
relativistic interpretation of the right of
rebellion that –in the line initiated by
Grotio– considers the ethical and political
foundation of humanitarian interventions
and reconcile his commitment to
democratic values and liberals, within
their own political community,

According to the first type of legitimacy,

which we could call domestic, the morality
ofa State depends on the adequacy
between the government and the
community, that is, on the degree to
which the government represents the
political life of its people. When this does
not occur, he has the right but not the
obligation to rebel. This may be due to the
fact that, to a greater or lesser extent, its
members consider that either the
rebellion is reckless, or its outcome
uncertain or, even more, that the
government should be tolerated. Hence,
domestic legitimacy is unique125. Thus,
in Western countries, our judgments
suggest that there is only one very
restricted type of legitimacy: that based
on more or less liberal human rights and
democracy. From a government that does
not respect these values (regardless of
whether citizens rebel,
124
TESÓ N, F., "International human rights
and Cultural relativism", cit., Pp. 875-881.
125
WALZER, M., "The moral standing of
the States", cit, p. 214.
126
Ibid, p. 215.
On the contrary, in the light of
international morality, States enjoy a
presumption of legitimacy, or what is the
same, that there is a certain fit between
the community and its government. This
presumption leads to a second one: if a
particular state were attacked, its citizens
would consider themselves compelled to
resist and would indeed resist because
they value their own community in the
same way that we value communities in
general. Consequently, the other States
cannot intervene unless the disagreement
between the government and the people
is manifestly evident. When a foreign
invasion occurs, even when it has
revolutionary intentions, and even when
it is justified (of course, in light of the
domestic legitimacy of the invading state),
It can be said that the rights of citizens
and subjects have been violated. More
specifically, “the intervention would have
artificially accelerated the political and
moral development of a community, or
disregarded its prudential considerations
or possible loyalties, in favor of the
conception of justice and political
prudence of some others” 127.

Unlike the domestic, thisThe second kind

of legitimacy is pluralistic in character.
The judgments we make there reflect our
recognition of community diversity and
integrity and respect for different
patterns of political and cultural
development. According to the latter (and
unlike what is prescribed by our domestic
morality) the absence of political rights
and of certain individual civil rights
would not be considered by the members
of a community a sufficient or decisive
reason to turn against their rulers. This
supposes admitting that the type of
correspondence between the government
and the people does not necessarily have
to be of a democratic nature, but that it is
enough that the people have the right to
form a government that they can consider
"their own" 128.

But why should international morality

respect this diversity of domestic
legitimacies? As it seems to be clear from
the work we are commenting on, its
intention is none other than to restrict as
much as possible the circumstances that
justify a military intervention in the
territory of another State and thus refute
the defense of a right of humanitarian
intervention for less serious cases of
violation of human rights such as that
defended by Luban, Beitz or Tesó n129.
But, if this is really your only purpose,
Walzer

127
Ibid, p. 214-215.
128
Ibid, p. 226.
129
Luban considers that it is legitimate to
intervene whenever there is a massive
violation of what Shue considers socially
basic human rights. LUBAN, D., "Just Wars
and Human Rights", cit., P. 175. For his
part, Tesó n defends a right of interference
as a remedy not only for egregious cases
of violation of human rights, such as
genocide, slavery or mass murder, but
also to put an end to situations of serious
oppression even - that it does not become
a genocide. TESÓ N, F., Humanitarian
Intervention, cit., P. fifteen.
Other types of reasons could have come
up: either utilitarian arguments, such as
the need to preserve international order
and security, which - if interventions are
admitted simply due to a deterioration or
lack of democratic freedoms - could be
seriously threatened, or the seriousness
that always - Pre involves the use of
force130; or to the proportionality that
must mediate between the degree of
seriousness of human rights violations
and the type of intervention to sustain - as
Eusebio Ferná ndez does - that military
interventions should be reserved
exclusively to prevent "the triumph of
what is radically intolerable ”131.
However, his correct conviction of Walzer
that not any kind of injustice or violation
of human rights is a sufficient reason to
intervene ends up being enveloped by the
language and the categories of normative
relativism, or more specifically, a
variation of the same that we could
qualify prima facie. According to this,
tolerance of the different forms of
political legitimacy would be justified by
our inability to know sufficiently the
history of other communities. This would
disable us to make concrete judgments of
their conflicts and harmonies, of their
historical choices and cultural affinities, of
their loyalties and resentments. Hence - at
least prima facie - the conduct of a
community can neither be known nor
judged132. of a variation of the same that
we could qualify prima facie. According to
this, tolerance of the different forms of
political legitimacy would be justified by
our inability to know sufficiently the
history of other communities. This would
disable us to make concrete judgments of
their conflicts and harmonies, of their
historical choices and cultural affinities, of
their loyalties and resentments. Hence - at
least prima facie - the conduct of a
community can neither be known nor
judged132. of a variation of the same that
we could qualify prima facie. According to
this, tolerance of the different forms of
political legitimacy would be justified by
our inability to know sufficiently the
history of other communities. This would
disable us to make concrete judgments of
their conflicts and harmonies, of their
historical choices and cultural affinities, of
their loyalties and resentments. Hence - at
least prima facie - the conduct of a
community can neither be known nor
judged132. of their historical choices and
cultural affinities, of their loyalties and
resentments. Hence - at least prima facie -
the conduct of a community can neither
be known nor judged132. of their
historical choices and cultural affinities, of
their loyalties and resentments. Hence - at
least prima facie - the conduct of a
community can neither be known nor
judged132.

But, once the door to relativism is open, is

it possible to close it?And if so

In what way? Bayefeski putPreviously, I

have shown the increasingly intense force
with which the idea of cultural
sovereignty has been making its way in
international forums and, after it, the
acceptance that ethical-cultural relativism
can become a limit or brake - in fact
already it is - for the full universalization
of internationally recognized human
rights. We have also seen how Walzer
ends up succumbing to its charms by
arguing that, except in the two
assumptions that we will comment on
later, international society must morally
and not only prudently tolerate all types
of government that citizens may consider
their own. But can relativism come to
question the legitimacy of interventions
to stop much more serious violations of
humans, that is, situations such as
genocide,

For some time, the prudential reasons

that advised doing nothing to stop some
of the greatest outrages against humanity
appeared-

130
Vine. BEITZ, C., “Non-intervention and
communal integrity”, cit., Pp. 389-391.
131
FERNÁ NDEZ, E., “Cosmopolitan loyalty
and humanitarian war interventions”, Re-
view of the West, 236, January, 2001, p.
63
132
WALZER, M., "The moral standing of
the states", cit., P. 212. For a critique of
this argument, see. LUBAN, D., “The
romance of the Nation State”, Philosophy
& Public Affairs, 9, nº4, 1980, pp. 392-
397.
They were combined with a reassuring
invocation of cultural relativism.
TheInternational peace was, from this
perspective, better guaranteed by
adopting a relativist rather than a
universalist perspective. The impression
is that this combination of caution and
relativism would be unacceptable today.
As Feyerabend asserts, peace efforts no
longer need to respect a presumed
cultural integrity that is often nothing
more than the rule of a tyrant133. It gives
the impression that, at present, rather
than representing a threat or denial of the
legitimacy of humanitarian interventions,
ethical-cultural relativism has ended up
unleashing a discourse that is more
favorable than damaging to them. This
has to do, without a doubt, with the
transformations of the world order that
have occurred in the last decade, and
even with the quenching of the relativistic
fury in both anthropology and moral
philosophy. But, in part, it is also the
product of its own success, of the
acceptance both on the legal-political and
philosophical levels, that the
predominantly Western version of human
rights enshrined in international texts
required a more or less profound
correction than make its observance
compatible with respect for cultural
diversity. The truth is that, as this revision
would not cover all rights but primarily
those that could be considered as more
“western” and, therefore, ignorant of the
different contexts and particularities
(absolute prohibition of differences by
reason of sex or confession, political
freedoms, freedoms of expression,
association, etc.), the rest would have
emerged strengthened and, apparently,
definitely immunized from the threat of
relativism. And, among these last rights,
would be those that constitute the most
direct foundation of humanitarian
interventions: the right to life and
personal liberty.
133
FEYERABEND, P., «Against cultural
ineffability. Objectivism, relativism and
other chimeras ”in GINER, S. and
SCARTEZINI, R. (eds), Universidad y
difference, cit., P. 41.
 2. A JUSTIFICATION FOR
HUMANITARIAN
INTERVENTIONS IN THE
MINIMUM HUMAN RIGHTS

Weaknesstheoretical vs. practical

force of ethical-cultural relativism

We previously pointed out that the

universality of human rights whose
violation prima facie justifies a
humanitarian intervention would be safe
from ethical-cultural relativism. At
present it seems extremely difficult to
question that the moral prohibition of
genocide, slavery or ethnic cleansing is
beyond any form of skepticism, and that
this can be expressed in the language of
universal human rights. But, as we
indicated before, this should not be
interpreted as a total denial of relativism
but rather as its partial overcoming or
correction. That is, today practically no
one would reject the existence of values
that are not purely endogenous, But
neither would the transculturality and
universality of the totality of rights that
have been proclaimed as such from the
18th century to the present day. Thus, the
thesis of normative relativism according
to which there are no meaningful values
in more than a certain cultural context
would be rejected, but it would not have
been possible to defend that all
internationally positivized human rights
are not, in their substance or in some of
their conceptions, exclusive of one or
more of the rationalities or civilizations of
the planet.

The defense of the universality of this

greater or lesser catalog of human rights
should focus, at least in a first stage, on
showing the inconsistencies and fallacies
on which ethical-cultural relativism rests,
as well as on discrediting its claim to be a
philosophy that favors tolerance. These
criticisms could be summarized in the
following points:

1) The conviction of relativists that

individuals are deeply shaped by their
culture and society hypostases the role of
social and cultural determinants, while
exaggerating homogeneity and
 54

autonomy of culture and society. Sebreli

notices the existence of a somewhat
pathological tendency among
anthropologists to interpret complex
human reality in exclusive terms of
culture, making it an absolute134.
However, neither culture nor society have
a self-sufficient and independent
character (both are conditioned by the
economy, technological development, the
political system, etc.), nor are they the
only factor that makes up the personality
of the individual. individual 135. At least
to some extent, Rawls is right when he
declares that the self can modify its ends
without thereby endangering its moral
identity.

Faced with the determinism of cultural

factors in the configuration of personality,
Parekh claims that individuals are not
passive objects lacking moral and
intellectual resources different from those
provided by their own culture or society,
and consequently incapable of adopt a
critical and independent point of view
regarding dominant beliefs. By definition,
every culture has a history and ideas,
myths, stories of struggle, and dreams of
perfection inherited from the past that
 55

provide critical distance and some

resources for resisting dominant beliefs.
Furthermore, since, as part of its self-
reproducing mechanism, every society
encourages its members to think critically
about the beliefs and customs of
foreigners,

2) It has also been shown that

normative relativism suffers from a
serious internal logical incoherence. This
arises from the fact that, on the one hand,
it rejects the existence of objective and
independent values of the different
cultures and traditions that allow them to
be judged, but, on the other, it is
presented as a driving philosophy of a
single principle that would be objective
and transcultural: the tolerance of all
cultures and moral codes. Besides being
incoherent, this principle incurs the
«naturalistic fallacy» (Moore) consisting
of deducing the duty of being, of inferring
the moral validity of every custom or
norm from the mere fact of being
approved by a certain culture138 .
 56

134
SEBRELI, JJ, The siege of modernity,
cit., P. 47.
135
On the relationships between
relativism and personal identity, vid.
GUTMANN, A., “The challenge of
Multiculturalism in Political Ethics”,
Philosophy and Public Affairs, vol.22, n.3,
summer, 1993, pp. 182 sqq.
136
RAWLS, J., Political Liberalism,
Columbia University Press, 1993, pp. 30-
32.
137
PAREKH, B., "Non-ethnocentric
universalism" in DUNNE, T. and
WHEELER, N. (eds), Human rights in
global politics, Cambridge University
Press, 1999, pp. 133-135.
3) On the other hand, it is totally
unjustified that the logic of relativist
discourse necessarily implies the defense
of tolerant attitudes towards foreign
moral systems. The value of tolerance
does not derive from relativism but is a
universal moral imperative. The relativist,
as such, cannot say anything for or
against tolerance from a moral point of
view since, from the moment he did so, he
would cease to be an observer of morality
and would become a defender of her. And,
in addition to being based on
contradictory reasoning, the thesis of the
link between normative relativism and
tolerance is discredited by historical
experience, making it possible to speak of
a psychosociological connection between
it and totalitarian ideology139.

The rational reasons against relativism

thus seem very compelling. If the strength
of their arguments when it comes to
understanding, interpreting and enforcing
internationally proclaimed human rights
depended on the strength and
predicament that they currently have in
the philosophical community, it would be
quite weak and, in any case, much less
intense than in decades past. Faced with
the radicalism of anthropologists,
linguists and analytical ethics of the first
half of the 20th century, it is much more
difficult to find such an outrageous
defense of ethical relativism in current
moral philosophy. However, a more
realistic attitude would lead to verify that
the correction or moderation of the
relativistic impulse on the theoretical
plane has not been transferred to the
world of international organizations and
relations in which, As we have seen, the
attachment to cultural peculiarities has
been driving for years a tacit revision of
the Universal Declaration of human
rights. This is undoubtedly deeply linked
to the type of audience that international
society represents. It is obvious that it is
not made up of a community of
philosophers, nor does it resemble the
ideal community of dialogue, nor a
universal audience, but rather it is an
association of sovereign States formed, as
Walzer says, by union between a
government and “a” political community.
138
RENTELN, A., "Relativism and the
search of human rights", cit., Pp. 61-62;
TESÓ N, F., “International human rights
and cultural relativism”, cit., Pp. 888-889;
SEBRELI, JJ, The siege of modernity, cit.,
Pp. 70-71; SCARTEZZINI, R., "The reasons
for universality and difference", cit., Pp
24-25.
139
Vine. LÓ PEZ CASTELLÓ N, E.,
"Theoretical assumptions of ethical
relativisms", Sistema, 58, 1984, p. 19.
140
PÉ REZ LUÑ O, AE, «The universality of
human rights» in LÓ PEZ GARCÍA, JA and
DEL REAL, A (eds), Rights: between
ethics, power and law, cit., Pp. 59-63.
The truth is that, as Nagel shows, in the
world considered globally there are
cultural and national communities that
represent values so radically different
that it does not seem possible to construct
a single conception of a legitimate
political order in which everyone could
live, a force-backed legal system whose
basic structure was acceptable to all141.
This data would then raise doubts as to
the extent to which the overcoming of
cultural relativism necessary to achieve a
full spatial universalization of human
rights should not, within reason, accept as
a theoretically irreducible reality that
cultural and ideological pluralism and be -
using Rawls's well-known expression - a
political overcoming rather than a
metaphysical one. And it is that,
regardless of whether or not one is
relativistic, or whether or not ethical-
cultural relativism constitutes a coherent
theory, I think it reasonable to admit that
its best or worst intended use has
contributed to making the differences and
particularities of the various civilizations
and cultures of the planet much more
visible and to recognize that universality
of human rights should be the fruit of
dialogue between them142. This has also
made it possible to reveal the naivety of
both ethical rationalism, for which the
demonstration of the rationality of a value
was a necessary and sufficient condition
for its realization143, and of liberalism,
which considered that the decisive factor
for the universalization of human rights
were the legal and political instruments
and not the social and moral requirement
that should promote them144.

The minimalist response to ethical-

cultural relativism

Aware of these realities, RJ Vincent has

pointed out different proposals to
reconcile universality and difference, to
make universal human rights viable in the
midst of cultural diversity. They would be
the following three:

141
NAGEL, T., Equality and partiality,
trans. by JF Alvarez, Paidó s, Barcelona,
1996, p. 172.
142
We could speak like this, following a
distinction that Peces-Barba applies to
the process of specifying rights but that
we could also transfer to that of their
internationalization, of the universality of
human rights as a point of arrival rather
than as a point. PECES-BARBA, G., "The
Universality of Human Rights", Doxa, 15-
16, 1994, p. 626.
143
BOBBIO, N, The time of rights, trans.
from R. De Asís, Sistema, Madrid, 1991, p.
60.
144
Vine. RUBIO CARRACEDO, J., «Liberal
Rights or Human Rights?», In RUBIO
CARRA-CEDO, J., TOSCANO, M. and
ROSALES, JM, Citizenship, Nationalism
and Human Rights, cit., Pp. 167-168.
a) To considerthe expression “human
rights” is a concept recognized in all
societies and cultures, but which they
define in terms of their own particular
values145. From this perspective, it
would be defended the possibility and
need for human rights (whose scope and
significance is universal) to be translated
and interpreted in the categories and
values of each culture.

b) Find a nucleus of human rightsbasic

principles shared by all cultures based on
a common denominator to all of them:
human reason, the biological bases of
moral personality, the universal tendency
to face human suffering, etc146.

c) Overcoming the tension between

universality and difference thanks to the
existence in today's world of a unique
cosmopolitan culture extended to all
indigenous cultures: that of human rights,
which is none other than the culture of
modernity147.

The first of these alternativesI would

point to a very marked trend in the
current philosophy of human rights
according to which speculation on the
basis of these is a sterile task with a view
to promoting their respect. Faced with the
aforementioned dogma of ethical
rationalism, historical experience has
shown that the alleged finding of an
absolute foundation has not contributed
to a more rapid recognition and
realization of them. In this regard, let us
recall Bobbio's well-known maxim that,
after the Universal Declaration accepted
by practically all the countries of the
world, the real underlying problem of
human rights is not so much to justify
them as to protect them148. Since the
question of the foundation of human
rights is situated at the level of the theory
of justice, your answer will depend on the
quality of our ethical wisdom. But, as
Rorty points out, the emergence of the
culture of human rights does not seem to
owe anything to the increase of moral
knowledge, but rather responds much
more to a “progress of feelings”, to the
education of our capacity to see much
more. the small and superficial
similarities between us and people very
different from us149. On the other hand,
if there is an international consensus on
145
VINCENT, RJ, Human rights and
international Relations, Cambridge
University Press, 1986, p. 48.
146
Ibid, p. 49. On a humanitarianism
based on the principle of "do no harm"
vid. CAMPBELL, D., "Why Fight:
Humanitarianism, Principles and Post
Structuralism", Millennium, 3, 27, 1998,
pp. 497-521
147
VINCENT, RJ, Human rights and
international Relations, cit., P. fifty.
148
BOBBIO, N., The time of rights, cit., P.
61.
149
RORTY, R., «Human rights, rationality
and sentimentality», in SHUTE, S. and
HURLEY, S. (eds), De los Derechos
Humanos, cit., P. 132.
human rights, it could not be bornof the
acceptance of a single explanation of the
foundation of rights but, in the line
defended by Taylor, it should be
something similar to the Rawlsian overlap
consensus, in which different groups,
countries, religious communities,
civilizations, even defending visions
Incompatible fundamentals about
theology, metaphysics, human nature,
etc., would reach an agreement on certain
norms that should govern human
behavior. Each of these groups would
have their own way of justifying such
norms, which means that we would agree
on their content even though we differ on
the reasons why we believe they are
correct150.

Faced with this mixture of skepticism and

pragmatism, it seems that the main
alternative that arises when conciliating
ethical-cultural relativism and human
rights is to affirm a universal catalog of
rights similar to those promoted so far
but expressed in more abstract terms, and
/ or establish a smaller nucleus than it
can be concluded that it would be
accepted by all communities and cultures.
Thus, for S.Lukes, the list of human rights
should be kept “reasonably short and
reasonably abstract” because only in this
way is it possible to secure a consensus in
the broad contemporary political
spectrum. Such a list would include basic
civil and political rights, the rule of law,
freedom of expression and association,

The minimalist path proposed by Lukes

has long been advocated by liberals like
Vincent and Rawls and - in a perhaps
more ambiguous but ultimately more
radical way - by communitarians like
Walzer. The first one is committed to
overcoming the ineffectiveness of
universally recognized rights by focusing
on the notion of “basic rights” defended
by Henry Shue. Their list would be made
up of those rights whose enjoyment is
essential for the rest of the rights152;
more specifically, for the right to life, in
the double sense of security against
violence and the right to subsistence.
Since it is beyond reason to authorize the
impairment of human life under the
protection of any type of sovereignty or
modus vivendi,
150
TAYLOR, C., "A world consensus on
human rights?", Dissent, Summer, 1996, p.
fifteen-

twenty-one.
151
LUKES, S., "Five fables about human
rights", cit., P. 45. And it is that, as

Laporta highlights, “the more it

multipliesthe list of human rights, the less
force they will have as a requirement, and
the more moral and legal force they are
supposed to be, the more limited must be
the list of rights that adequately justify it
”. LAPORTA, F., "On the concept of human
rights", cit., P. 2. 3.
152
VINCENT, RJ, Human rights and
international Relations, cit., P. 125.
Vincent considers it a good strategy to try
to sustain a valueso uncontroversial the
greatest amount of freedoms, presenting
them as part of the demands and
implications contained in the right that
protects it. Through this maximalist
conception of the right to life, a
minimalist conception of civil and
political liberties is reached. Thus, as Shue
also points out, having the right to life
also means enjoying freedom to - at least -
protest and mobilize against their
deprivation, having access to institutions
that guarantee it153. Vincent believes
that the appeal of this restricted nucleus
of human rights lies in the realism of its
neutrality with respect to the main
political, economic and cultural divisions
existing in the world,

The idea of basic human rights has also

been embraced by Rawls in his The Law
of Peoples (1996 and 1999), a work in
which he has attempted to formulate a
conception of “international justice
resulting from the extension of the
principles of "Justice as fairness."
Returning to the classical terminology of
the ius gentium intra se, Rawls refers to it
as the
“Law of nations”, which he defines as “a
particular conception of law and justice
applicable to the principles and norms of
international law and practice” 155. To
propose a theory of international justice
as the extension of justice as equity obeys
the need to elaborate a complete theory
of the liberal principle of tolerance. To
achieve this extension and, in accordance
with a strategy similar to that adopted in
Political Liberalism, it is necessary to
consider the law of nations as a theory
that is neither comprehensive (of a
totalizing or globalizing character), nor
metaphysical (based on some moral
conception, religious or philosophical),
but purely political156.

Among the elements that define a political

theory of justice, it is worth highlighting
the displacement of the notion of moral
truth by the idea of the reasonable157. In
addition to expressing an ideal of
tolerance, the primacy of reason

153
SHUE, H., Basic rights: Subsistence,
Affluence and Us Foreign Policy, Pricenton
Uni-versity Press, 1980, pp. 74-78.
154
VINCENT, RJ, Human rights and
international relations, cit., P. 126.
155
RAWLS, J., The Law of Peoples,
Harvard University Press, Cambridge,
1999, p. 3.
156
Vine. RAWLS, J., «Derecho de Gentes»
in SHUTE, S. and HURLEY, S. (eds), On
human rights, cit., Note 2, p. 47.
157
“Within the political conception of
justice, we cannot define truth as given by
beliefs defined even in an idealized
consensus, regardless of how broad it
may be (…) Once we accept the fact that
reasonable pluralism is a permanent
condition of public culture under free
institutions, the idea of the reasonable is
more adequate as part of the basis of a
public justification ”. RAWLS, J., Political
Liberalism, cit., P. 129.
nable leads to obtaining a public basis for
justification having to adopt an impartial
point of view between the points of view
of reasonable general doctrines. The
combination of pluralism, the idea of
reasonableness and the search for a
public basis for justification translates
into the adoption of a strategy consisting
of starting with implicitly shared ideas
and converting them, through reflective
equilibrium, into a political conception
that can serve as axis of an overlapping
consensus. Therefore, like what happened
in Political Liberalism, The Law of Peoples
“is marked by a dominant concern for the
possibility and practicability of political
ideals when faced with cultural and
ideological pluralism (…) Rawls wants to
assure and assure us that his political
conception of international justice can be
the axis of an overlapping consensus,
because such a thing would show that it is
not only a modus vivendi, but that it can
gain reasoned support (in various ways)
from free and equal agents as rational and
reasonable ”158. The Law of Peoples
would thus be presided over by the
search for a middle ground between
liberalism and the acceptance of cultural
and ideological pluralism, between
factuality and validity, between realism
and utopia. rather, it can gain reasoned
support (in various ways) from free and
equal agents as rational and reasonable
”158. The Law of Peoples would thus be
presided over by the search for a middle
ground between liberalism and the
acceptance of cultural and ideological
pluralism, between factuality and validity,
between realism and utopia. rather, it can
gain reasoned support (in various ways)
from free and equal agents as rational and
reasonable ”158. The Law of Peoples
would thus be presided over by the
search for a middle ground between
liberalism and the acceptance of cultural
and ideological pluralism, between
factuality and validity, between realism
and utopia.

To elaborate his conception of

international justice, Rawls takes the
following steps. In the first place, he
constructs an explanation to justify how it
is possible to extend "justice as fairness"
to establish a law of peoples valid for
liberal societies. Second, it sets out the
reasons that justify extending the law of
nations to decent non-liberal societies.
This second step is carried out through a
double strategy: on the one hand, it thins
the content of liberal justice; on the other
hand, it broadens the content of the idea
of justice in hierarchical societies to the
point of making it almost seamlessly link
with the first159. As we previously
indicated, this second extension is
presided over by the idea of tolerance,
understood not in a negative sense (such
as refraining from military sanctions,
diplomatically or economically to whom
we understand that they must change
their ways of life) but as the recognition
that these non-liberal societies are equal
members of the community of
peoples160. One of the keys to such
tolerance would be that non-liberal
decent societies also respect human
rights, although not all those that derived
from the two principles of justice as
equity, but rather those that derive from
the most abstract and restriction of the
same that expresses the law of peoples
composed of the minimum and urgent
rights: the right to the media

158
McCARTHY, T., “Unity in difference:
Reflections on cosmopolitan law”,
Isegoría, 16, 1997, p. 44.
159
RUBIO CARRACEDO, J., «International
Justice and Human Rights», cit., P. 198.
160
RAWLS, J., The Law of Peoples, cit., Pp.
65 and 79.
subsistence and security (rights tolife),
freedom from slavery, servitude and
armed occupation, personal property and
formal equality expressed in rules of
natural justice161. Thus, for example,
hierarchical societies (confessional
states) are not required to recognize
complete freedom of conscience but to
admit a certain amount, even if such
freedom is not, as is the case in liberal
regimes, the same for all individuals.
members of society 162.

Human rights are, therefore, a special

class of universally applicable rights
whose main function is to set limits that
no State can cross and whose violation, on
the contrary, would justify external
intervention. Specifically, the functions of
basic human rights would be the
following three: a) they establish the
minimum conditions of legitimacy and
decency of domestic legal systems; b)
they set a limit to pluralism between
peoples; c) its observance is sufficient to
exclude justified interventions by other
peoples, through economic or diplomatic
sanctions or, in serious cases, armed
force163.
The advantage of these minimal human
rights is that they cannotbe rejected as
peculiar to Western culture, as they are
not necessarily derived from the liberal
idea that views people as free and equal
individuals and citizens and treats them
independently of culture and society .
They can also be understood as the result
of the requirements of justice based on
the common good and the good faith of
officials when explaining and justifying
the legal order that any society must
satisfy. In a society that is not based on
the Western individualist political
tradition, that does not see citizens as
holders of rights as individuals but rather
as holders of duties as members of a
community, human rights could be
referred to as "habilitation rights", rights
that enable people to perform their duties
in the groups to which they belong
(unions, corporations, etc.). In this sense,
they are politically neutral164.

Rawls's moral minimalism is consequently

the result of a thinning of Western liberal
justice. As McCarthy points out, from
Theory of Justice, through Political
Liberalism, to The Law of People, the idea
of justice undergoes a progressive
weakening in order to accommodatea
progressively greater degree of cultural
diversity than Rawls considers

161
Ibid, p. 79.
162
RAWLS, J., «Law of People», cit., P. 67.
163
Ibid, p. 75; id, The Law of Peoples, cit.,
p. 80 (italics added).
164
RAWLS, J., «Law of People», cit., P. 72.
theoretically irreducible165. The most
outstanding product of this process is a
restricted version of internationally
recognized human rights, but which, in
turn, can be predicated of not only formal
but also practical validity. Although, in the
opinion of his critics, the price may be an
excessive concession to the status quo
and the marginalization of the second
principle of "justice as fairness" 166,
there is no doubt that one of the real
advantages of his theory of international
justice lies in making the universality of a
hard core of rights and freedoms much
less questionable in whose defense it is
possible to resort, if necessary, even
through armed intervention.

The most radical and direct defense of

humanitarian interventions based on
moral minimalism is, however, the one
offered by Walzer. We previously saw
how this author rejected a broad right of
humanitarian intervention such as that
defended by Luban or Tesó n, defending
the presumption of legitimacy of States in
international society. Well, respect for the
ethical pluralism implicit in this theory
has one of its strongest exceptions in this
type of intervention. Along with secession
or national liberation in a State in which
different communities coexist and
assumptions of counter-intervention, the
legitimacy of war operations aimed at
ending slavery or stopping massacres,
they constitute the main modifications
that Walzer introduces in the «legalistic
paradigm». Does this mean that he
considers the rights to life and liberty a
universal moral reality whose defense can
justify the violation of national borders?
Although Walzer seems to end up
accepting that it is, the general tone of his
speech is a continual back and forth from
the particular to the universal that at
times obscures the true content of his
conclusions.

It is true that, to condemn massacres or

slavery and justify interventions, Walzer
appeals to "the moral conscience of
humanity", which is discovered not by
abstracting but by concentrating on the
moral convictions of ordinary men and
women acquired in the course of their
daily activities167. However, from the
rest of their reasoning it can be deduced
that these acts justify the interference not
so much because they represent a
violation of human rights as because they
suppose the elimination of the political
community on whose protection the
moral value of the State rests168. When a
government is

165
MAcCARTHY, T., "Unity in
difference ...", cit., P. 46.
166
Vine. POGGE, T., "An egalitarian Law of
Peoples", Philosophy & Public Affairs, 23,
1994, pp. 195-224.
167
WALZER, M., Just and injust wars, cit.,
P. 107.
168
About the predominance of
communitarian elements over
individualists in Walzer's justification of
humanitarian intervention, Vid. RUIZ
MIGUEL, A., "The humanitarian war
interventions", Keys of Practical Reason,
68, 1996, pp. 17-18.
turns savagely against its members, we
must doubt the very existence of a
political community to which the idea of
self-determination could be applied. To
speak in these cases of community or self-
determination - concludes Walzer - seems
cynical and irreverent169.

Where there does seem to be an

acceptance of the notion of human rights
as the legitimizing ethical category of the
interventions is in the version of moral
minimalism, of the moral minimum
common to all peoples and cultures,
which Walzer subscribes. In the opinion
of the Princeton professor, some have
seen in a restricted catalog of basic
human rights a kind of ethical language
for all humanity, a kind of moral
Esperanto capable of introducing unity
amid diversity and particularism.
However, moral minimalism, when
expressed as minimal morality, “will be
inserted in a language and an orientation
of one of the maximum moralities” 170,
that is, in some of the domestic
legitimacies to which we previously
alluded, especially in western values.
Therefore, unlike other minimalisms,
seeking to identify a neutral starting point
from which many different and possibly
legitimate cultures could develop (as is
the case with Habermas and Appel's
proceduralism), Walzer feels much closer
to that of so-called 'conditions of mere
decency' (that is, with the acceptance of
any ideal or argument that is achieved
without tyrannical coercion or civil war)
advocated by S.Hampshire171. But even
in the latter, it operates by setting a
starting communal or universal minimum
up to which all particular ethical maxims
are expected to converge. Faced with this,
Walzer is committed to locating
universality at the end of the difference,
by “recognizing the great diversity of
historical processes and seeking similar
results” 172. The minimum morality of
minimalism cannot therefore be a neutral
and inexpressive morality, but rather the
product of an effort to designate
“principles and rules reiterated in
different times and places that are
considered similar even when they are
expressed in different languages and
reflect different stories and different
world views” 173. A search for moral
consensus that is very reminiscent of the
Aristotelian and Ciceronian definition of
Natural Law as the laws common to all
civilized peoples and the historical and
non-foundational methodology that,
according to Bobbio, inspires it174.

169
WALZER, M., Just and Injust wars, cit.,
Pp. 100-101.
170
WALZER, M Moralidad en el local y
internacional, translation and preliminary
study by R. del Aguila, Alianza, Madrid,
1996, p. 42.
171
Vine. HAMPSHIRE, S., Innoncence and
Experience, Harvard University Press,
Massachusetts, 1989, esp. pp. 72-78.
172
WALZER, M., Morality at the local and
international level, cit., P. 47.
173
Ibidem, p. 49.
But what would be the content of this
minimal morality? Walzer is clear that the
international moral consensus will be
more evident if it is posed in a negative
way, noting that it is very likely that the
result of such effort is a group of negative
mandates against murder, lies, torture,
oppression and tyranny175. As can be
seen, these standards largely coincide
with the minimal content of Hart's
Natural Law and with the type of moral
agreement that, according to Raz, can be
appreciated in many advanced industrial
societies176. But Walzer is speaking of a
moral minimum that is not domestic but
universal, and, at this point, he recognizes
that the presumption of non-intervention
(and of the legitimacy of States in
international society) could be considered
a feature of that moral minimum. .
However,

Justifying humanitarian interventions at

that moral minimum, does it also mean
doing it in terms of human rights? The
fact that Walzer declares that the
language of rights is a mode of expression
proper to the moral maximalism of
today's Europeans or Americans is no
reason to answer negatively. Walzer ends
by admitting that this language would be
translatable into the categories of other
maximalisms, thus being admissible to
argue that humanitarian interventions
are acts of solidarity demanded by
respect for the human rights to life and
liberty. These are the two most important
and widely recognized rights, the only
ones that can be said to be the result of
our common humanity and not just the
product of a local and particular
conception of justice178.

Attention should be drawn to two related

issueswith the negative character of the
universal moral minimum that Walzer
defends. As we have seen, the negative
minimalist strategy that it adopts would
obey the search for an evident and
neutral universality with respect to the
different cultural, ideological and
religious traditions. It should be added
that the negative character of the
universal moral minimum also has a very
specific historical genesis: the descent
into hell caused by the Nazi holocaust and
the post-genocides.

174
Vine. BOBBIO, N., «The
modeliusnaturalista », in Studies in the
History of Philosophy. From Hobbes to
Gramsci, trans. de JC Bayó n, Debate,
Madrid, 1985, p. 86.
175
WALZER, M., Morality at the local and
international level, cit., P. 49.
176
RAZ, J., "The politics of the Rule of
Law", in Ethics in the public domain:
essays on morality of law and politics,
Clarendon Press, Oxford, 1995, p. 372.
177
WALZER, M., Morality at the local and
international level, cit., Pp. 48-49.
178
M. WALZER, The spheres of justice,
cit., P. 13.
countries in the USSR, Cambodia, Rwanda,
etc. So dramaticEpisodes in our more
recent history would explain, in Ignatieff's
view, that modern moral universalism “is
based not so much on hope as on fear, not
so much on the optimism that awakens
the human capacity for good, as on the
panic produced by its capacity for evil,
not so much in the man who created his
own history as in the enemy that may
result for his own species ”179.

On the other hand, although Walzer

considers that negative minimalism is a
safer way to avoid ending up incurring in
some form of maximalism, this does not
ultimately prevent his proposal from
being within the coordinates of a Western
conception of the intolerable. Although
Walzer ends up redirecting them to the
more abstract notion of the human rights
to life and liberty, the prohibitions against
lies, tyranny, oppression and torture
would focus on those forms of injustice
and suffering towards which they seem to
show greater sensitivity to the media,
public opinion and, in general, Western
culture. As Parekh shows, we Westerners
only focus on the most pressing and
spectacular forms of human suffering
such as hunger, the threat of death,
terrorism, etc., and not in the slow death
caused by poverty, malnutrition and
political and economic
underdevelopment. There is no doubt
that the latter are considered forms of
injustice and inequality that demand an
urgent restructuring of the internal order,
but they are not considered, on the
contrary, that they demand action from
those who are outside. Therefore, our
conception of humanitarian intervention
is distinguished by its political nature and
by its focus on the state. For us, “death
and suffering become objects of
intervention only when they are caused
by the collapse of the State or a
monstrous abuse of its power” 180. There
is no doubt that the latter are considered
forms of injustice and inequality that
demand an urgent restructuring of the
internal order, but they are not
considered, on the contrary, that they
demand action from those who are
outside. Therefore, our conception of
humanitarian intervention is
distinguished by its political nature and
by its focus on the state. For us, “death
and suffering become objects of
intervention only when they are caused
by the collapse of the State or a
monstrous abuse of its power” 180. There
is no doubt that the latter are considered
forms of injustice and inequality that
demand an urgent restructuring of the
internal order, but they are not
considered, on the contrary, that they
demand action from those who are
outside. Therefore, our conception of
humanitarian intervention is
distinguished by its political nature and
by its focus on the state. For us, “death
and suffering become objects of
intervention only when they are caused
by the collapse of the State or a
monstrous abuse of its power” 180.
179
IGNATIEFF, M., The honor of the
warrior. Warethnic and modern
consciousness, cit., pp. 23-24.
180
PAREKH, B., “Rethinking Humanitarian
Intervention”, International Political
Science Review, 18, 1, 1997, p. 55.
3. THE COST OF WARS IN DEFENSE
OF HUMAN RIGHTS

Consequential vs. Deontologism

Human rights as they have been

considered, the arrest of some of their
most flagrant violations, offer a
foundation or - at least - almost
incontrovertible moral reason with which
to justify humanitarian warlike
interventions. However, this conviction is
tempered when we ask ourselves to what
extent human rights are sufficient to
provide a complete justification for
interventions and whether any way to
implement their defense can ipso facto
benefit from their moral quality. The
answer to this question will be
conditioned both by the ethical
conception that we subscribe
(consequentialist, deontological, etc.) and
by the way in which we are inclined to
define humanitarian interventions:

In favor of an absolute justification of

interference based on human rights, it is
often argued that human rights, or at least
basic human rights, impose duties erga
omnes, which are universal, not only in
the active sense that they are attached. to
all human beings, but also in the liability
that vindicate universal respect and
protection181. But it is not the uni-

181
As Vincent and Wilson argue, the basic
aspect of basic human rights is that they
impose duties on everyone and not just
on governments. VINCENT, RJ and WIL-
SON, P., "Beyond non-intervention" in
FORBES, I. and HOFFMAN, M., Political
Theory, International Relations, and the
Ethics of Intervention, cit., P. 123. On the
correlation between rights and duties in
basic human rights vid. PANICHAS, GE,
"The structure of basic human rights",
Anuario de Derechos Humanos, 7, 1990,
pp. 113-140.
 IV. THE COST OF WARS IN DEFENSE OF HR. 68

versatility per se of human rights and

their correlative duties, the only feature
of the same that is offered in their favor as
a sufficient reason to justify the
interventions. It is also pointed out that
they are absolute rights, that is, moral
demands that, as Dworkin affirms,
triumph over any other ethical claim and,
above all, over any other demand of a
social, economic, political nature, etc. This
would ultimately mean that the duties
related to human rights are also absolute
and cannot be postponed due to
considerations such as those mentioned.

Starting from such a conception of rights,

it is understandable that the idealism and
rigorism present in any justification of the
interventions that is based exclusively on
the former is underlined and that their
defenders are branded as authentic
“moral imperialists” 182. In the opinion of
Ruiz Miguel, this type of justification
would offer a counterintuitive derivation
that is not easy to fit or avoid: “if human
rights constitute a firm deontological
criterion of peremptory and universal
moral obligation and not simply desirable
states of affairs between those that can be
made balances and calculations in terms
 IV. THE COST OF WARS IN DEFENSE OF HR. 69

of consequences, then impose universal

correlative duties. In the case at hand
here, that means that anyone who is in a
position to do so - and not just states,

If to the universal and absolute character

of the correlative duties that guarantee
their protection, we add the favorable
emotionality enjoyed by human rights,
there is the risk that any action that
manages to present itself as a defense of
them will ipso facto enjoy a presumption
of legitimacy that prevents its
examination and assessment based on the
causes that triggers it, the means used
and the consequences it produces. Hence
the risk pointed out by Ignatieff that the
language of human rights ends up
becoming a powerful new rhetoric of
abstract justification, dependent on
“virtual realities”, on abstractions that
simplify the causes and consequences of
wars184.

The idealism of the deontological model,

its apparent inability to take into account
the factual circumstances surrounding
humanitarian interventions.
 IV. THE COST OF WARS IN DEFENSE OF HR. 70

182
TESÓ N, F., “Collective Humanitarian
Intervention”, Michigan Journal of
International Law, 17, winter, 1998, p.
323.
183
RUIZ MIGUEL, A., "Humanitarian war
interventions", cit., Pp. 19-20.
184
IGNATIEFF, M., Virtual war. Kosovo
and Beyond, Metropolitan Books, New
York, 2000, p. 6.
rias, has been especially criticized by
advocates of a renewed version of the just
war tradition. As is well known, the origin
of this doctrine dates back to Agustín de
Hipona (The City of God), but its concepts
were not elaborated until the 13th
century by the work of Thomas Aquinas.
The greatest development and application
of the doctrine will take place in the 16th
and 17th centuries by Vitoria (Relectio de
Indis) with its theory of ius
comunicationis185 and, later, by Grotius,
who will give it a more legalistic imprint.
Although it is a theory enlightened by
Christian theology and, therefore, of
Western origin, there are those who
advocate Jihad as a comparable Islamic
version186.

One of the greatest advantages that, in the

opinion of some of the most prominent
promoters of its recovery, the doctrine of
the just war would be recognition of the
moral importance of the consequences
and of the insufficiency of virtuous
intentions when of what it is about using
force. Although its use is inherently
undesirable, it may nevertheless be
necessary and correct in certain
circumstances, but - even then - it can
have harmful effects. In Fixdal and
Smith's opinion, the just war doctrine
allows us to overcome this paradox by
integrating the three main ethical
traditions: deontologism (the priority is
that our actions satisfy the duties we have
towards others), consequentialism (the
priority is that the effects of our actions
respect the duties we have towards
others) and the ethics of virtues (the
priority is that our actions satisfy the
duties we have towards ourselves) . The
need to overcome the discrepancies
between the rectitude of virtuous
intentions and the uncertainty of
consequences encourages us to weigh
each case before making firm judgments
about the legitimacy of a war of
intervention. The just war doctrine
addresses this challenge through its
distinctive form of casuistic
argumentation, in which the moral
principles distributed between ius ad
bello and ius in bello establish guidelines
and admit exceptions, compromises, and
gaps between reality and the desire. The
advantage of this casuism is that, Instead
of submitting moral dilemmas to the
"tyranny of principles" (Jonsen and
Toü lmin), it tries to place morality and
reality on the same plane. In this way, the
conclusions do not spring from

185
Vine. In this regard, PÉ REZ LUÑ O, AE,
“Interventions for reasons of humanity.
An approach from the Spanish classics of
the philosophy of law ”, Revista de
Occidente, nº 236-237, January, 2001, pp.
71-90; RAMÓ N CHORNET, C., Necessary
violence? .., cit., Pp. 29 sqq.
186
Vine. RAMSBOTHAM, O., “Islam,
Christianity, and Forcible Humanitarian
Intervention”, Ethics and International
Affairs, 12, 1998, pp. 88-89; JOHNSON, JM,
"Historical Roots and Sources of the Just
War Tradition in Western Culture" in
KELSELY, J. and JOHNSON,

JT (eds), Just War and Jihad: Historical

and Theoretical Approaches on War and
Peace in Western and Islamic Traditions,
Grenwood Press, New York, 1991.
strong preconceived notions about the
justice of war or intervention, but about
sensitivity to the reality of a particular
war or intervention187.

Another way of trying to overcome the

rigorism pointed out by Ruiz Miguel,
Tesó n or Ignatieff and take the
consequences into consideration, but
without renouncing a justification for the
interventions in human rights, is the one
defended, among others, by Tesó n, Beitz
or Walzer188. Although starting from
different premises and arguments, all of
them consider that the best way to
overcome the tension between the human
rights that justify acting militarily and the
consequences that derive from it is to
consider the intervention not a duty but
simply a right. For Walzer, humanitarian
intervention is completely voluntary,
even in the face of widespread and
obvious brutality: “humanitarian
intolerance is generally not enough to
overcome the risks posed by intervention,

Finally, an attempt could be made to

reconcile human rights and the
consequences of their defense on the
basis of a more flexible and
comprehensive understanding of the
moral meaning of the former. Certainly,
liberalism, or at least a certain version of
it, has argued that the strength and sense
of rights lies precisely in the exclusion of
deliberation in terms of consequences.
Rights would establish the limits of what
can be done to some individuals to benefit
others, to the sacrifices that can be
demanded of them as a contribution to
the general good190. Following Hare191,
the meta-ethical conception that is at the
base of this “triumphalist” conception of
rights would be the intuitionism that, in
the case of humanitarian interventions, I
consider to be even stronger since, Along
with the principles that support basic
human rights, the duty to intervene
would also be supported by an
intuitionism of the act fueled by the CNN
effect to which we alluded at the
beginning192. Television images of
massacres and atrocities

187
FIXDAL, M. and SMITH, D., “Just War
and Humanitarian Interventions”, cit., Pp.
287-288.
188
TESON, F., Humanitarian Intervention,
cit., P. 117; BEITZ, C., Political Theory and
International Reations, cit., P. 91.
189
WALZER, M., On tolerance, trans. by F.
Alvarez, Paidó s, Barcelona, 1998, p. 36.
190
DWORKIN, R., Serious Rights,
trans. by M.Guastavino, Ariel,
Barcelona,1984, pp. 279 sqq.
191
HARE, RM, Moral thinking: Its Levels,
Methods and Points, Claredon Press,
Oxford,1981, pp. 26 sqq.
They would be strong enough to know
that, without having to provide factual
information or having to deliberate, know
that it is correct to intervene.

But accepting that rights represent such

an immensely important element of our
moral language as to justify in many cases
that they are “triumphs”, does not
eliminate the possibility and need to
resort to reasoning that takes into
account the consequences of the acts
carried out in compliance. of such rights.
Although necessary, relatively simple
principles employed at an intuitive level
are not, however, sufficient in moral
thinking. It seems amply accepted that
recourse to a consequentialist
argumentation becomes spatially
necessary when conflicts between rights
occur and this is precisely the situation
that is generated in humanitarian
interventions. Attempting to resolve such
tensions without transcending the plane
of principles (that is, without abandoning
intuitionism), By introducing exceptions,
it does not seem a reasonable way out:
there would always be a degree of
complexity in such principles, which for
psychological and practical reasons, they
cannot and should not cross193. No
matter how well equipped we are with
relatively simple prima facie principles,
we will always find ourselves in situations
in which they collide with each other and
in which it is necessary to resort to some
kind of non-intuitive thinking to resolve
such conflicts, to critical thinking. Unlike
the intuitive level, at this critical level of
moral thought it offers the characteristics
of the utilitarianism of the act since it
allows us to resort to consequentialist
reasoning194. that for psychological and
practical reasons, they cannot and should
not pass through193. However well
equipped we may be with relatively
simple prima facie principles, we will
always find ourselves in situations in
which they collide with each other and in
which it is necessary to resort to some
kind of non-intuitive thinking to resolve
such conflicts, to critical thinking. Unlike
the intuitive level, at this critical level of
moral thought it offers the characteristics
of the utilitarianism of the act since it
allows us to resort to consequentialist
reasoning194. that for psychological and
practical reasons, they cannot and should
not pass through193. However well
equipped we may be with relatively
simple prima facie principles, we will
always find ourselves in situations in
which they collide with each other and in
which it is necessary to resort to some
kind of non-intuitive thinking to resolve
such conflicts, to critical thinking. Unlike
the intuitive level, at this critical level of
moral thought it offers the characteristics
of the utilitarianism of the act since it
allows us to resort to consequentialist
reasoning194. We will always find
ourselves in situations in which they
collide with each other and in which it is
necessary to resort to some type of non-
intuitive thinking to resolve such
conflicts, to critical thinking. Unlike the
intuitive level, at this critical level of
moral thought it offers the characteristics
of the utilitarianism of the act since it
allows us to resort to consequentialist
reasoning194. We will always find
ourselves in situations in which they
collide with each other and in which it is
necessary to resort to some type of non-
intuitive thinking to resolve such
conflicts, to critical thinking. Unlike the
intuitive level, at this critical level of
moral thought it offers the characteristics
of the utilitarianism of the act since it
allows us to resort to consequentialist
reasoning194.

192
However, it is not appropriate to
exaggerate the moral entity of this effect.
Like Comet Ignatieff, some psychologists
have pointed out that exposure to
suffering through television contributes
to increasing distance and ends up
generating a “compassion fatigue”:
“Television personalizes, humanizes, but
also depoliticizes moral relationships, and
in doing so weakens the understanding
on which empathy and moral
commitment depend. The virtual vices of
television therefore deserve some space
in our explanation of the “fatigue of
compassion” and the “fatigue of charity”,
of the growing little predisposition of the
rich and well-fed public to give
humanitarian aid or support foreign aid
from governments. The actual distance
has been drastically reduced by visual
technology, but the moral distance
remains intact. If we are fatigued, it is
because we feel assailed by heterodox
and promiscuous appeals and requests
for help from all corners of the world. The
moral narratives have been trivialized by
a repetition as a consequence of which
they have lost their impact and force ”.
IGNATIEFF, M., "The Stories we tell:
Television and Human Aid" in MOORE, J
(ed), Hard Choices. Moral Dilemmas in
Humanitarian Intervention, Rowman and
Littlefield Publishers, Lanham, 1999, p.
295. The moral narratives have been
trivialized by a repetition as a
consequence of which they have lost their
impact and force ”. IGNATIEFF, M., "The
Stories we tell: Television and Human
Aid" in MOORE, J (ed), Hard Choices.
Moral Dilemmas in Humanitarian
Intervention, Rowman and Littlefield
Publishers, Lanham, 1999, p. 295. The
moral narratives have been trivialized by
a repetition as a consequence of which
they have lost their impact and force ”.
IGNATIEFF, M., "The Stories we tell:
Television and Human Aid" in MOORE, J
(ed), Hard Choices. Moral Dilemmas in
Humanitarian Intervention, Rowman and
Littlefield Publishers, Lanham, 1999, p.
295.
193
Ibid, pp. 35-39.
14
Ibid, p. 43. As Waldron argues, if rights
themselves collide then the spectrum of
exchanges is reintroduced. It may happen
that, when identifying those interests that
should not be sacrificed to the profit
calculation, we are still selecting interests
that
Ultimately, human rights, their massive
and serious violation, may not be enough
to justify an act of humanitarian
interference. There is no doubt that a)
they make up a set of principles of justice
endowed with universal validity and b)
that the principle of non-intervention
does not have a higher moral or legal
value than that of human rights. As
Garzon Valdés points out, it is obvious
that statement a) implies the prohibition
of violating said principles and that from
statement b) it can be inferred c) that is,
that armed intervention is not only not
prohibited in some cases, but also it may
be permitted and even mandatory. But, as
the Argentine philosopher rightly insists,
between a), b) and c) there is no
relationship of implication:

The latter can only be accomplished by

holding on to what Weber calls ethics. of
convictionwhich, above all, takes into
account the correctness of the intentions
and the actions taken and the injustice of
the situation against which it is acted,
instead of an ethic of responsibility,
which, together with the above, would
also take into account the consequences
of those actions196. A responsible
intervention should, therefore, be
supported by good inductive arguments
that allow reasonable hypotheses to be
established about the consequences that
an armed operation of this nature would
entail in a given context and, after
weighing them, decide whether it is more
acceptable or reasonable to intervene
than do not intervene. All of which does
not ultimately guarantee that the
intervention will achieve a satisfactory
humanitarian outcome. The latter, as
Wheeler points out, can only be
determined retrospectively,

But what are or could be the effects or

consequences of a humanitarian war
intervention? We will start from a broad
concept of them in a fourfold sense. In the
first place, because we will take into
account the consequences of an
intervention both for the intervening
State or States and for the intervened
State / s and, in general, for international
society as a whole. Second, because we
will also pay attention to the
consequences

they are incompatible with each other

and, in this way, reproducing in the field
of rights the same solutions that we try to
avoid in the field of social utility.
WALDRON, J., "Rights in conflict" in
Liberal Rights: Collected papers 1981-
1991, Cambridge University Press, 1993,
p. 209.
195
GARZÓ N VALDES, E: "Guerra e diritti
humani", Ragion Practica, 13, 1999, p. 25.
196
WEBER, M., "Politics as a vocation" in
Political Writings, trans. by J.Aricó , Folios,
Mexico, 1984.
197
WHEELER, Saving strangers, Oxford
University Press, 2000, p. 303.
events that non-intervention would
entail. Third, the consequentialist study of
interventions must apply the well-known
distinction between the utilitarianism of
the act and the utilitarianism of the rule,
thus delimiting what would be the effects
derived from the interventions
themselves from those that would derive
from the universalization of the rule or
principle on which its legality and / or
legitimacy is based. Finally, because in
this world of consequences we will
include both the present benefits and
harms of the interventions and the future
risks and dangers that may arise from
them.

Humanitarian consequences.
Proportionality,just cause, last resort
and humanitarian outcome

The real ethical problem with

humanitarian war actions is not that they
are interventions (that is, that they
constitute acts that interfere in matters
pertaining to the sovereignty of the
States) but that they are armed
operations, warlike actions, which, as
such, can cause deaths and victims, both
in the population of the country in which
it is intervening and among the troops of
the intervention agents themselves198.
As Garzó n Valdés affirms, what is in
discussion with the interventions is not,
on the one hand, the principle of non-
intervention and, on the other hand, the
defense of human rights, but the injury of
the human rights of a group to ensure the
validity of those same human rights in
another group199.

The convincingly Iusirenista answer that

Ferrajoli offers to this question is striking.
In the opinion of this author, if war
carries an enormous cost of death and
suffering, it can never be a consistent
means but rather contrary to a
humanitarian goal such as the defense of
human rights. Trying to find some ethical
justification for the use of this large-scale
violence in the criteria of the just war
tradition reveals a lack of knowledge of
the ethical sense with which this theory
was illuminated. Legalist thinking did not
conceive it so much to justify just wars as
to - in the absence of international legal
limits and prohibitions - limit and
delegitimize unjust wars. Furthermore,
the criteria of iusta causa, auctoritas
principis, intentio straight, etc.

198
As Beitz points out, the seriousness of
military intervention is not that it is
intervention, but that it is military, thus
endangering the lives and well-being of
citizens. BEITZ, C., "Justice and
International Relations", Philosophy and
Public Affairs, 1975, p. 389.
199
GARZON VALDES, E., "Guerra e diritti
humani", cit., P. 47.
unsustainable nests, both ethically and
legally, due to the changes that have
occurred in the last century. The
phenomenon of contemporary warfare,
with the extremely powerful destructive
means created by military technology, has
a different nature from traditional warfare
from which the idea of “just war” takes
shape. Not only the atomic but also the
conventional one consisting of the
launching of missiles and bombing, has
turned war into a meansof inordinate and
uncontrollable destruction. Consequently,
after the great massacres of the century
just ended, the war seems, by its intrinsic
characteristics, an absolute evil with
respect to which all the old naturalistic
limits have ended up being
insufficient200.

Regardless of whether or not his

conclusions are shared, Ferrajoli's
wisdom in drawing attention to the need
for an analysis that more deeply and
responsibly brings together the ends and
the means of humanitarian interventions
must be recognized. The realization of the
abomination of war should serve - if
nothing else - to introduce an important
and decisive element of realism into the
discourse of those who are deeply
convinced of the necessity and legitimacy
of armed interventions in defense of
human rights. In this sense Ignatieff has
drawn attention to the way in which the
language of human rights can lead to the
invention of a virtual moral world,
inhabited by demonized enemies and
bloodthirsty States confronted by
virtuous allies and noble armies. The
Canadian essayist recalls the words of a
former World War II combatant who
stated that “a civilian remotely removed
from the battlefield will almost certainly
be more bloodthirsty than a soldier on the
front lines”. Therefore, activists in favor of
humanitarian war interventions should
understand military power much better
than they have done so far. Otherwise
they run the risk of ending up being
seduced by wars that end up destroying
the very human rights that they seem to
defend201. activists in favor of
humanitarian warfare should understand
military power much better than they
have done so far. Otherwise they run the
risk of ending up being seduced by wars
that end up destroying the very human
rights that they seem to defend201.
activists in favor of humanitarian warfare
should understand military power much
better than they have done so far.
Otherwise they run the risk of ending up
being seduced by wars that end up
destroying the very human rights that
they seem to defend201.

Without ignoring the destructive power

that wars can and usually have, including
those that are claimed to be waged to end
a massive violation of human rights, if not
all, at least some of the criteria of ius ad
bellum and ius in bello elaborated by the
just war theory, they would continue to
be valid as long as the use of force does
not reach the destructive dimensions that
Ferrajoli attributes to wars202. Of being

200
FERRAJOLI, L., “Guerra“ etica ”e
diritto”, cit., Pp. 121-123.
201
IGNATIEFF, M., Virtual war, cit., Pp. 6-
7 and 213-214.
202
See in this regard BROWN, C., “A
qualified defense of the use of force for
humanitarian reasons”, in BOOTH, K. (ed),
The Kosovo tragedy. The Human Rights
Dimensions, The International Journal of
Human Rights, vol.4, nums. ¾, Autum-
Winter, 2000, p. 288.
Thus, the answer of the iustum bellum
doctrine is that the deaths caused by the
intervention can be assumed from a
moral perspective if they meet certain
requirements.

The first of them is proportionality203.

InterpretationMore plausible of this
principle is, in Pontara's opinion, that
there must be proportionality between,
on the one hand, the rights violated as a
collateral effect of the use of means
intended to protect rights and, on the
other hand, the rights that de facto they
are protected thanks to the use of such
means204. But what criterion allows us to
establish this approximate parity? The
number of rights violated and protected?
The degree of protection of rights? The
number of people whose rights are
violated or injured? Is the probability
before eventum connected to the different
alternatives regarding protection and
violation of rights? 205 The complexity of
these questions is accentuated according
to how the objectives of the intervention
are defined and prioritized. If this is
considered as the only one or - at least
primarily - an act of rescuing human
beings, the determining factor of
proportionality would appear to be the
number, thus resulting in legitimacy of an
operation in which the number of
casualties is less than the number of lives.
saved. If, on the contrary, it is considered
that the former is not the only objective of
the interventions but also the protection
of basic human rights, then it could be
accepted that an operation that saves
approximately the same lives is
legitimate. that it removes but that it
establishes in the political system that
guarantees for the future adequate
protection of those same rights. Thus,

The requirement of proportionality seems

to presuppose that the lives and physical
integrity at stake in any humanitarian war
operation have the same and only moral
value; that the deaths of the soldiers of
the intervening countries must be
counted equally as that of the citizens of
the intervened States (which does not
mean that the lives of the soldiers of the
intervening country should not be taken
into account the time to make or morally
evaluate the decision to intervene,
although it seems reasonable to place
them at a lower level because it is those
who are materially committing the
203
Vine. GARDAM, J., "Proportionality and
Force in International Law", The
American Journal of International Law,
87, 1993, pp. 391-395.
204
PONTARA, G., "War ethics, war ethics
and global tutela dei diritti", Ragion
Practica, 13, 1999, p. 60.
205
Ibid, p. 62.
acts of genocide or ethnic cleansing).
WithoutHowever, not all the proclaimed
humanitarian interventions have
sincerely and consistently assumed this
last moral assumption206. Quite the
contrary, the different valuation that is
made of one or the other lives provides
one of the best examples of the distance
that exists between the idealism of the
values that it claims to defend and the
political and social circumstances in
which the interventions they are
effectively carried out. Not in vain, one of
the principles that up to now has been
guiding its implementation has been the
reduction to a minimum of the loss of life
among the intervening armies. Moreover,
one of the main reasons for intervention
in certain countries where massive and
systematic human rights violations were
taking place (for example, Kosovo) and
not in others (for example, Rwanda)
should be sought in that in the first cases
it was considered that the risks to be
assumed were not very high, while in the
second the opposite was considered. As
Wheeler points out, the case of Rwanda
illustrates how, even in a case where
there were good reasons to think that the
use of force would have been successful
with only limited casualties, political
leaders decided to resolve the conflict
between its duties towards its citizens
and its duties towards foreigners in favor
of the former207.

From the communitarian perspective,

resolving this conflict in this way is
ethically justified since, without denying
that we have duties towards those who
live beyond our borders, communitarians
and even some liberals consider that our
first moral duty is towards those who are
closest to us and they are part of our
community208. Along these lines, Jackson
and Hendrickson consider that the first
duty of States in such circumstances is to
protect their own people, both soldiers
and civilians, and that only afterwards
can they try to protect anyone else209.
On the other hand, it is affirmed that not
putting the lives of one's own soldiers
before the lives of third parties implies
turning humanitarian intervention into an
action that requires supererogatory
behaviors.
206
As Walzer points out, states do not
send their troops to other countries just
to save lives. The lives of foreigners do
not have as much weight in the scales of
domestic decision. WALZER, M., Just and
injust wars, cit., P. 102.
207
Vine. WHEELER, NJ, Saving strangers,
cit., Pp. 300-301.
208
Vine. GOODIN, RE, “What is so special
about our fellow countrymen ?, Ethics, 98,
1988, pp. 633-86; MILLER, D., "The ethical
significance of nationality", Ethics, 98,
1988, pp. 647-62; WALZER, M., "Spheres
of affection" in NUSSBAUM, M., The limits
of patriotism, trans. de C. Castells, Paidó s,
1997, p. 154.
209
HENDRICKSON, D., "In defense of
realism: A comment on Just and Injust
Wars", Ethics and International Affairs,
11, 1997, p. 46. JACKSON, R.,
"International Community be- yond the
war", in LYONS, G. & MASTANDUNO, M.
(eds.), Beyond Westphalia? National
Sovereignty and International
Intervention, cit., P. 75.
gatories, which means the sacrifice of a
good forsave another equivalent. And, in
the opinion of Garzó n Valdés, no rational
ethics can impose this type of sacrifices
that transform the world into a moral
hell210. Not surprisingly, this type of
situation would raise certain doubts
about the very category of human rights,
if it is understood that one of their
characteristics is to impose correlative
universal duties that do not take into
account personal relationships and
human rights. loyalties to those closest to
us.

In addition to the aforementioned moral

reasons, own casualties must be
prudently considered by governments
that want to have the support or - at least
- the non-opposition of their respective
non-cosmopolitan public opinions when
undertaking this type of action.
operations211. This priority is often
justified pragmatically in the need to
ensure the implementation and
effectiveness of humanitarian
interventions. If, as Hassner declares, the
universalist point of view were to be the
only legitimate one, if any intervention
whose motives were partly self-interested
were thereby disqualified, the Pol Pots
and Idi Amin Dadas of this world would
have remained in power. until a "global
humanitarian community" had been
prepared to act,

However, from a cosmopolitan ethical

perspective that, given the equalitymorality
of all men, consider that the
relationshipsPersonal or community
should not be a source of moral duties
stronger and different from those owed to
the human race as a whole, it would not
be possible to morally justify that one of
the factors that determines both the
decision to intervene and the means
employees once it is agreed to do so is
only to avoid casualties among the
participants themselves. Adopting this
perspective, P. Kahn affirms, since it is
inherent to the concept of human rights
that all human life has the same value, a
war in favor of human rights that is
carried out without assuming this type of
risk is a against-

210
GARZÓ N VALDÉ S, E: "Guerra e diritti
humani", Ragion Practica, 1999, 13, p. 46.
211
Hence, Vincent locates the future of
humanitarian interventions in the
development of cosmopolitan moral
sentiments between states and their
respective civil societies. VINCENT, RJ,
Human rights and International Relations,
cit., P. 127. For his part, Wheeler
considers that the acceptance by the
world community of a right to
humanitarian intervention would require,
among other factors, that those who work
for human rights in NGOs, universities
and the media mobilize opinion publishes
towards a new and practical moral
consensus for the protection and
promotion of human rights. WHEELER,
NJ, Saving stangers, cit., P. 310.
212
HASSNER, P, "From War and Peace to
Violence and Intervention" in J. MOORE
(ed), Moral Dilemmas in Humanitarian
Intervention, cit., P. 24.
moral diction. On the contrary, warsrisk
assumes that our lives concern us more
than those of those for whose salvation
we intervene213, and also contains the
danger pointed out by Ignatieff that those
who are safe from danger are no longer
constrained by the consequences of their
actions, to the point of turning war into a
sport “that allows the pleasure of the
spectacle with the added emotion that it
is real for some but not, happily, for the
spectator214.

Hence, there are reasons to understand

that the Atlantic Alliance's intervention in
Kosovo was animated by this seemingly
incoherent logic, in which cosmopolitan
sentiments demanding an end to all
genocide, regardless of which nation,
people or community may being its
victims (ex-President Clinton will
proclaim that ending the Kosovo tragedy
represented “a moral imperative”) were
combined with the use of military means
that put the safety of their own soldiers
almost entirely before possible death. of
those whom it was intended to save (as
evidenced by the refusal of the coalition
of intervening states to send ground
troops to the region). As A.Cavanagh
points out, The tension between the
moral imperative to save the Kosovar
Albanians and the internal political risk
that would have posed for the NATO
governments to commit to sending
ground troops was artificially resolved
with an exclusively air operation215. We
are thus faced with one of the main
ethical dilemmas of humanitarian
interventions. If, as Garzó n points out,
demanding that one's own lives be
endangered in order to save that of
strangers constitutes a supererogatory
behavior, it will only be possible to
intervene in those cases where military
superiority guarantees an operation
without risks for one's own soldiers but
that, at the same time, on the one hand it
increases the risk of collateral damage
and, on the other,

213
KAHN, P, “War and Sacrifice in
Kosovo”, Philosophy and Public Policy, 19,
Spring-Summer, 1999.
214
IGNATIEFF, M., Virtual War, cit., P.
161.
215
CAVANAGH HODGE, P, "Casual war:
Nato's Intervention in Kosovo", Ethics and
International Affairs, 14, 2000, pp. 49 and
53. A harsh criticism of the media used by
NATO in Kosovo and of the humanitarian
consequences of this intervention can be
seen in RE- MIRO BROTONS, A, “A new
order against international law: the case
of Kosovo”, Magazine Electronics of
International Studies, 1, 2000, pp. 8-9.
Web address: http: //www.reei.org/.
216
GARZÓ N VALDÉ S, E: "Guerra e diritti
humani", cit., P. 46.
The problem of collateral damage has,
however, traditionally been overcome
thanks to the finalist conception of
interventions predominant in
internationalist literature. According to it,
what must be addressed in order to
consider an intervention as humanitarian
is not so much its results as its
humanitarian intention is certified. This is
what the just war doctrine knew as
straight intentio. Hence, among other
things, collateral damage is justified using
the Thomist "double effect" theory,
consisting of justifying any harm caused
to non-combatant civilians, arguing that
the author's intention was not to cause it
but to achieve a good. Namely,

A sophisticated version of this theory is

the one initially offered by Tesó n with his
attempt to minimize the moral
significance of collateral damage by
rejecting that we are facing a true
violation of human rights. To justify this
thesis, Tesó n rejects, firstly, the
conception of rights as protected
interests, since, in his opinion, this only
takes into consideration the victims and
not the intention of those who undermine
them; and, secondly, it makes a more than
questionable distinction between the

"Undermining" (infrigment) and

"violation" of human rights. The former is
characterized as a frustration of the
victim's interests. Only the class of rights
violated and the number of victims is
relevant to determine it. But not all
impairment of human rights would
constitute a violation of them. The latter
is an impairment that entails a lack of
respect (in the Kantian sense) of the
victim, carried out in a completely
voluntary way and with full awareness of
treating them without respect. Therefore,
to evaluate the justice of wars we must
not take as a reference the damage caused
by the wrongdoers, but rather the reasons
for causing it218.

The weakness of the double effect theory

is, however, well known. Walzer has
drawn attention to the danger that this
theory provides a blank justification for
the unintentional deaths of civilians that
are, however, highly predictable219. The
moral precariousness of this argument
therefore seems beyond doubt. Therefore,
the expression "collateral damage" does
not
217
McINTYRE, A., "Doing Away with
double effect", Ethics, 2001, January,
2001, p.

220. Vid. also LICHTENBERG, J., "War,

Innocence and the Doctrine of Double
Effect", Philosophical Studies, 1994, pp.
347-368.
218
TESÓ N, F., Humanitarian Intervention,
cit., P. 95 sqq. Tesó n takes this argument
from Montaldi. MONTALDI, D., "Toward a
Human Rights based Account of Just
War", Social Theory and Practice, 11,
1985, p. 123.
219
WALZER, M., Just and injust wars, cit.,
P. 153.
goes from being a mere euphemism to
referto the killing of innocent civilians
and the destruction of non-military
targets that have nothing to do with
military purposes. For this reason, one
might suspect that what those who try to
defend all or some interventions,
highlighting the goodness of their
intentions over the unsatisfactory results
of their results, really seek is to avoid a
realistic political analysis of said
operations220.

The double effect theory would also be

discredited if it is doubted that the
humanitarian was the true intention of
the interventions in Somalia, the Balkans,
etc. For some of the most ardent
opponents of NATO's intervention in
Kosovo, for those that J.Merton describes
as “anti-imperialist anti-interventionists”
221 (Chomsky or Tariq Ali, etc.), the
design of a military strategy presided
over by the principle of avoiding the own
casualties, even at the price of increasing
humanitarian risks among the civilian
population, would be one more piece of
information to confirm that the true
motives for the intervention would not
have been humanitarian. The real trigger
for the intervention would be national
interests of an economic, political or
strategic nature, humanitarianism being
only a new rhetoric with which to
legitimize such action. Thus, some
commentators on the intervention in
Kosovo consider that this operation
would obey the need to continue
justifying the existence of the Atlantic
Alliance and reinforce its credibility once
the Soviet Union disappeared222. The
absence of true humanitarian motives
would also explain the double standards
used by the United States in situations
comparable to that of Kosovo, such as
those in Kurdistan, China, Chechnya, etc.
In the case, above all, of the Kurds in
Turkey, aid to this population would
undermine the US economic and military
interests that the United States has in an
area as strategic as Asia Minor.

220
CALLINICOS, A., «The ideology of
humanitarian Intervention» in TARIQ, A.,
Masters of the Universe? Nato's Balkan
Crussade, Verso, London, 2000, pp. 175-
189.
221
These critics humanitarian
interventions do not exclude the possible
legitimacy of all interventions but only
oppose the particular forms of North
American and European diplomacy that
have emerged after the end of the Cold
War and the emergence of the unipolar
world order. For these authors,
hegemonic democracies selectively use
the rhetoric of humanitarianism to
validate the protection of their military
power and economic hegemony.
MERTON, J., “Legitimizing the Use of
Force in Kosovo”, Ethics and International
Affairs, 2001, p. 135.
222
HAMMOND, P. and HERMAN, ES (eds),
Degraded Capability. The Media and the
Kosovo Crisis, Pluto Press, Sterling, 2000,
pp. 7-8; ALI, T., Masters of the Universe?
Nato's Balkan Crusade, cit., P. IV.
The incongruity manifested between
attitudes in the case of China and that of
Kosovo also raises serious doubts about
the real intentions of the intervening
parties and - what is more serious -
weakens confidence in the effectiveness
of human rights as a guide for political
action. of the States223.

But to what extent is the intention to

rescue or protect human rights a
determining factor in qualifying an
intervention as humanitarian? In his
recent and excellent work on this subject,
Wheeler defends a very provocative
thesis: that humanitarian intention is not
really key to qualify an intervention as
humanitarian, and instead must resort to
the results or consequences of a specific
operation. The primacy of humanitarian
motives in determining the humanitarian
credentials of an intervention, however,
has been the common wisdom of
scholastic thought on the iustum bellum
and a large part of international
lawmakers who have dealt with
humanitarian interventions. Against this
view, Wheeler argues that even if an
intervention is motivated by non-
humanitarian reasons, it can still be
considered humanitarian to the extent
that it is proven that the motives and the
means used do not undermine a positive
humanitarian outcome. This does not
mean that international society should
praise those governments that are lucky
enough to achieve this happy coincidence
between non-humanitarian motives and
humanitarian means and results. What is
defended is, simply, that, to the extent
that they save lives, these interventions
should be legitimized rather than
condemned and sanctioned224. On the
other hand, Wheeler shows that what is
really important when asking about its
legitimacy is not the reasons for the
intervention but the reasons that are
publicly offered in its favor; not the
context of discovery but the context of
justification of humanitarian war
interventions. Because, although it does
not originate from a humanitarian
impulse but from the national interest,
any intervention that assumes the need to
appeal to humanitarian principles and
arguments to generate adherence will be
limited to actions that can be plausibly
defended according to the justifying
reasons that are proclaimed as a motive
for action225.
In any case, whether or not the lives of
locals and foreigners are valued equally, it
seems accepted that, if failure is to be
avoided, humanitarian interventions
cannot be carried out without assuming
human and material risks on the part of
those involved. As Walzer points out,
although today

223
GARZÓ N VALDÉ S, E., "Guerra e diritti
humani", cit., P. 41.
224
WHEELER, NJ, Saving stangers, cit, pp.
38-39.
225
Ibid, p. 40.
Today it is not easy in western
democracies to endanger soldiers,
humanitarian interventions are, above all,
military actions that are directed against
people who use force and violate the
peace, so they “will be ineffective if they
do not there is a willingness to accept the
risks that military actions entail:
bloodshed, soldiers' casualties, etc. ”226.

The requirement of proportionality also

requires that human rights violations
must be serious and serious enough so
that there is a rough reciprocity between
the harm that is being avoided and the
probable and often inevitable legacy of
destruction, death and suffering. I believe
that, as we have commented, they can
leave the interventions behind. The
definition of the violations that may
justify intervention should be brief to
avoid abuse and clearly establish their
moral and political legitimacy227. If
previously we restricted qualitatively the
material scope of interventions to the
prevention or detention of –exclusively–
minimum human rights, now we do so
quantitatively, highlighting the need that,
for there to be just cause, such violations
must be systematic and massive.
Traditionally, it has been understood that
in order for said jus ad bellum criterion to
meet, such violations had to reach the
dimensions and intentions of
genocide228. At present, there is a
broader interpretation of the notion of
serious violations of human rights that, in
principle, would be distinguishable from
genocide but which have the gravity of
what in internationalist language has
agreed to be called international
crimes229. The catalog of these contained
in article 5 of the Statute of the
International Criminal Court (genocide,
crimes against humanity, war crimes and
crimes of aggression) together with that
of slavery,

226
WALZER, M, "The reasons to
intervene", Letter International, 40,
September-October, 1995, p. 18. This
article is the Spanish translation of "The
Politics of Rescue", Dissent, Winter, 1995,
pp. 35-41.
227
DUPI (Danish Institute of International
Affairs), Humanitarian Intervention: Legal
and Political Aspects, Copenhagen, 1999,
p. 106. Web address:http:
//www.dupi.deca/webxt/ humint /.
228
Vine. DUNNE, T., and KROSLAK, D.,
“Genocide: Knowing what it is that we
want to remerber, or forget of forgive”, in
BOOTH, K. (ed), The Kosovo tragedy. The
Human Rights Dimenssions, The
International Journal of Human Rights,
vol. 4, nums. ¾, Autum-Winter, 2000, pp.
27-46.
229
Vine. CARRILLO SALCEDO, JA,
Sovereigntyof States and Human Rights
in Contemporary International Law, cit., p.
118.
Minimizing humanitarian
consequenceslike those outlined, it would
also seem to demand that military
intervention be the last resort available to
put an end to massive human rights
violations. According to this requirement,
all political and diplomatic means must
have been previously exhausted before
deciding to intervene. The use of force can
sometimes be necessary and therefore
legitimate, but if a just cause can be
achieved through non-violent methods,
the parties have a moral and prudential
obligation to prefer those means. We are
surely facing one of the conditions for
interventions that raises the greatest
difficulties and dilemmas both for the
intervening States and for the
international community.

On the one hand, the defenders and critics

of a given intervention rarely manage to
agree on whether the intervening forces
have made the most of their efforts to
reach a negotiated solution to the conflict,
or whether they have used diplomatic
channels in an ideological way, without a
sincere vocation to avoid the use of force.
In the case of Kosovo, there are many who
doubt that, given the way in which the
negotiations between NATO and the
Serbian government took place, the
Rambouillet agreements constituted that
last attempt to avoid the armed
solution230. On the other hand, this last
resort requirement may jeopardize the
effectiveness of interventions since it
would deprive them of the surprise factor
and, on the other hand, it can become an
excuse to eternally paralyze the often
unavoidable and necessary decision to
intervene231. Armed humanitarian
interventions would therefore move in
the middle of these dilemmas: on the one
hand, an intervention as a last resort may
come too late, but it could also happen
that another very urgent and hasty one
ends up causing an escalation of rights
violations. humans. These types of
dilemmas are perhaps a good example of
the limitations of an exclusively
consequentialist justification for
humanitarian interventions232. But it
could also happen that another very
urgent and hasty one ends up provoking
an escalation of human rights violations.
These types of dilemmas are perhaps a
good example of the limitations of an
exclusively consequentialist justification
for humanitarian interventions232. But it
could also happen that another very
urgent and hasty one ends up provoking
an escalation of human rights violations.
These types of dilemmas are perhaps a
good example of the limitations of an
exclusively consequentialist justification
for humanitarian interventions232.

An assessment of the possible

consequencesof a given intervention
could also take into account what might
be called its

230
In the opinion of P. Andrés, after the
appearance of a simple political
agreement, the Rambouillet Accords
contain the harshest conditions that have
been imposed on a State after the end of
World War II, with the aggravating
circumstance that they are not the result
of a post-war imposition. The depth of
Rambouillet's implications makes what
was presented as an unacceptable
Yugoslav rejection more understandable.
ANDRÉ S SAÉ NZ DE SANTA MARÍA, P.,
“Kosovo: everything for International Law
but without International Law”,
Meridiano Ceri, August, 1999, pp. 2-4.
231
BRIAN HEHIR, J., "Military Intervention
and National Sovereignity" in MOORE, J.
(ed), Moral Dilemmas in Humanitarian
Intervention, cit., P. Four. Five.
232
On this point Vid. WHEELER, N.,
Saving stangers, cit., P. 35.
humanitarian opportunity cost, that is, the
lives that would be lost and the human
rights that would cease to be protected by
choosing to intervene in one
humanitarian setting rather than another.
For example, one might wonder about the
lives and rights that would have been
rescued and protected if, instead of
intervening in a country where the
population is being the victim of genocide
or ethnic cleansing, the same human and
economic means are used to end poverty
or underdevelopment that is leading so
many or even more people to death and
misery233. If, applying a well-known
argument of P. Singer, we admit that
intervening is a requirement imposed by
the duty of assistance towards those who
suffer massive and systematic violation of
their rights and most basic needs without
sacrificing anything of comparable moral
significance234 , It would seem of
minimal coherence that situations such as
those indicated should have an
international response as strong or even
stronger than the one that takes life in
humanitarian war operations235. A
contradiction that, as we have seen,
Parekh attributes to the cultural
specificity of our conception of
humanitarianism, but which could also be
attributed to the apparently greater
helplessness in which those who are
victims of genocide find themselves
compared to those who are victims of
poverty. or underdevelopment.

To the above-mentioned requirements of

just cause, proportionality and last resort,
a fourth condition should be added which,
in Wheeler's opinion, a humanitarian
intervention should meet to be legitimate
from the perspective of the consequences.
This is the requirement that those who
make the decision to intervene must have
the belief that the use of force will
produce a humanitarian result. This will
be achieved if the intervention has
rescued the victims of oppression and if
human rights have consequently been
restored or protected. According to
Wheeler, the twin demands of rescue and
protection reflect the division of
humanitarian results into the short and
long term: the first refers to the success of
the intervention in ending emergencies.
233
Vine. PONTARA, G., "Ethical warfare,
war ethics and global tutela dei diritti",
cit., P. 63.
2. 3. 4
SINGER, P., Practical Ethics, Ariel,
Barcelona, 1993, p. 209. Vid. also GRIFFI-
THS, M., LEVINE I and WELLER, M.,
"Soverignity and suffering" in HARRIS, J
(ed), The Politics of humanitarian
intervention, Pinter Publishers, New York,
1995, p. 37.
235
As Javier de Lucas points out, the
principle from which the duty of
humanitarian intervention would derive
(that of fighting to eliminate damage to
the most basic needs) at the same time
postulates demands for solidarity that
impose duties beyond mere humanitarian
assistance, such as development policies
and the renegotiation / cancellation of
foreign debt. DE LUCAS, J.
"Multiculturalism and Human Rights", cit.,
P. 71. On this aspect vid. likewise PLATT,
R., «The justification of intervention», in
FORBES, I. and HOFFMAN, M., 1993, pp.
110 et seq.
supreme humanitarian agencies, and the
second takes as a reference the extent to
which the intervention has removed the
main political causes of human rights
abuses236.

However, the relations between the two

ends of not only armed interventions but
also humanitarianism in general could
end up resulting to a greater or lesser
extent in conflict. Mario Bettatti has
shown how the humanitarian treats the
consequences of conflicts but not their
causes and finds himself subject to a
contradiction between alleviating the
suffering of the population and
reestablishing the wounded but to return
them to the point of view of arms of a
conflict that, far from ending, would be
perpetuated thanks to the
intervention237. Therefore, between the
objectives of rescue and protection there
would be a normative tension that,
according to Pasic and Weiss, gives rise to
a real dilemma: that of choosing between
a revolutionary humanitarianism or
another palliative one (restorative). The
former converts the conscious
participating rescuers into a “foreign”
political community, thereby redefining
the limits of the political space occupied
by the victims. Thus, a moral bond
between human beings as such would be
established that would transcend
sovereignty. The second involves discreet
acts of assistance or rescue that seek to
restore a person or group of people to a
position of autonomy within a sovereign
State. From what happened in the war in
Yugoslavia, these authors draw the
conclusion that a humanitarianism that
only pursues rescue, that is, the
immediate and unconditional relief of
suffering, is an insufficient and often
wrong answer. Instead of that emergency
humanitarianism, A humanitarian action
that does not separate the moral from the
political would be preferable, combining
the defense of short-term justice,
represented by rescue, with long-term
justice, represented by order. It is not
enough, and sometimes it is
counterproductive, to allow ourselves to
be carried away by the force with which
television images shake our moral
conscience and to viscerally conclude that
the only objective of the intervention is
the priority aim of helping those who
suffer238.
236
WHEELER, NJ, Saving strangers, cit., P.
37.
237
BETTATI, M., “Interference,
intervention or humanitarian
assistance” ?, Time for Peace, nº 32-33,
1994, p. 12.
238
PASIC, A. and WEISS, TG, “The politics
of rescue: Yugoslavia's War and the
Humanitarian Impulse”, Ethics and
international affairs, 11, 1997, pp. 109-
131. On the dilemmas derived from the
complexity of the objectives of the
interventions considered in the short or
long term. Vine. ANDERSSON, M., «You
save my life today, but what for
tomorrow. Some moral dilemmas in
humanitarian aid »in MOORE, J. (ed), Hard
choices. Moral dilemmas in humanitarian
intervention, cit., Pp. 137-154.
A very important factor with a view to
achieving a satisfactory humanitarian
outcome is that the intervention is
welcomed by the population for whose
rescue and protection it is acting. This
factor becomes, according to Tesó n, an
essential condition of the interventions:
“regardless of whether or not they are the
majority or the population, if the victims
of oppression reject foreign aid and
prefer, on the contrary, tolerate the
situation, foreign forces should stifle their
humanitarian drive. If citizens whose
rights are violated do not wish to be
rescued, if they consent to their
government, foreigners should not
substitute their judgment for that of
citizens239. The importance of this
consent is due to several reasons. On the
one hand, It is intended that the
intervention is not perceived as an act of
paternalism defending the interests of
those who - for reasons that we are not in
a position to understand or judge - do not
wish to be rescued. On the other hand, it
could seem an act of moral pride, of
imposing values whose supremacy or
conception does not have to be shared by
the victims.
I do not believe, however, that any of
these reasons justify giving consent as
high a value as Tesó n recognizes it.
Affirming the existence of basic human
rights such as life or personal freedom
presupposes that human beings will
always give priority to their own interests
and those of those close to them240. The
rejection of a rescue operation by those
who are being victims of genocide, mass
murder or slavery and who - as Ignatieff
points out - lack the resources to defend
themselves241, could never be
considered rational behavior. On the
other hand, there is nothing of
comparable ethical value that justifies the
tacit waiver of human rights that would
imply not accepting an intervention for
their defense. In this sense, This lack of
consent could be considered incompatible
with the inalienable nature of such rights.
Thus, someone as predisposed as Walzer
not to violate the political and moral
autonomy of a community with acts of
armed intervention ends up defending
the legitimacy of humanitarian
interventions even before they are
consented to by the population. After
stating that “if the intervening parties are
welcomed by a clear majority of the
population then it would seem strange to
accuse them of any crime” Walzer adds
immediately afterwards that it is almost
certain that said welcome will occur in
some of the three exceptions to the rule of
non-intervention and, in such cases, “the
invader will be innocent even before he is
welcomed” 242. Someone as predisposed
as Walzer not to violate the political and
moral autonomy of a community with
acts of armed intervention ends up
defending the legitimacy of humanitarian
interventions even before they are
consented to by the population. After
stating that “if the intervening parties are
welcomed by a clear majority of the
population then it would seem strange to
accuse them of any crime” Walzer adds
immediately afterwards that it is almost
certain that said welcome will occur in
some of the three exceptions to the rule of
non-intervention and, in such cases, “the
invader will be innocent even before he is
welcomed” 242. Someone as predisposed
as Walzer not to violate the political and
moral autonomy of a community with
acts of armed intervention ends up
defending the legitimacy of humanitarian
interventions even before they are
consented to by the population. After
stating that “if the intervening parties are
welcomed by a clear majority of the
population then it would seem strange to
accuse them of any crime” Walzer adds
immediately afterwards that it is almost
certain that said welcome will occur in
some of the three exceptions to the rule of
non-intervention and, in such cases, “the
invader will be innocent even before he is
welcomed” 242. It ends up defending the
legitimacy of humanitarian interventions
even before they are consented to by the
population. After stating that “if the
intervening parties are welcomed by a
clear majority of the population then it
would seem strange to accuse them of any
crime” Walzer adds immediately
afterwards that it is almost certain that
said welcome will occur in some of the
three exceptions to the rule of non-
intervention and, in such cases, “the
invader will be innocent even before he is
welcomed” 242. It ends up defending the
legitimacy of humanitarian interventions
even before they are consented to by the
population. After stating that “if the
intervening parties are welcomed by a
clear majority of the population then it
would seem strange to accuse them of any
crime” Walzer adds immediately
afterwards that it is almost certain that
said welcome will occur in some of the
three exceptions to the rule of non-
intervention and, in such cases, “the
invader will be innocent even before he is
welcomed” 242.

239
TESÓ N, F., Humanitarian Intervention,
cit., Pp. 120-121.
240
LUCKES, S., "Five fables about human
rights", cit., P. 33
241
IGNATIEFF, M., Virtual war, cit., P. 76.
242
WALZER, M., "The moral standing of
the states", cit., Pp. 213-214, footnote 7.
Finally, we can contemplate the political
and moral consequences that, for those
who are in a position to do so, would
derive from not intervening. But are there
really such consequences? If these
situations only have effects outside our
borders, how can doing nothing to save
those who are victims of their own rulers
or compatriots affect us? Ignatieff
attributes the lack of a more supportive
response to those who find themselves in
these or similar situations to the deeply
rooted idea that "their" security and
"ours" can be separated, to the fact that
their destiny and ours are differentiated
by history, chance and good luck 243.
Feeling moral compassion for the victims
has not been enough to embark on a
stronger commitment to their suffering.
Just the realization that, Sooner or later,
these acts will end up having
repercussions on our “safety zone” and
may cause us to perceive the need to
leave it and intervene in its “danger zone”.
In this sense, Walzer has pointed out that,
although the civilized world can, without
a doubt, coexist with behaviors of the
most uncivilized, behaviors of this kind
tend to spread, to be imitated or repeated
if they are not combated. Therefore, “if
the moral price of silence and insecurity
is paid, the political price of disorder and
illegality will soon have to be paid in
places closer to us” 244. And, in addition
to being politically disadvantageous in the
medium or long term, adopting a passive
attitude in the face of barbarism carries
the risk of disengagement, of non-
involvement that threatens the self-
respect and moral character of the
population245.

The repercussions of humanitarian

interventions on the international
order

One of the most frequently invoked

arguments to question the legitimacy of
humanitarian interventions revolves
around their destabilizing effects on the
international legal and political order. Not
surprisingly, it seems difficult to deny that
these operations violate two basic pillars
of it: the prohibition of the use of force
and respect for the equal sovereignty of
the States. Faced with this, the
interventions would appeal to a very

243
IGNATIEFF, M., The honor of the
warrior, cit., P. 105.
244
WALZER, M., "The reasons to
intervene", cit., P. 19.
245
VALLESPÍN, F., "Intervention
humanitarian: political or moral ?, cit., p.
59. Vid. LUTT-WAK, E., "Toward Post-
heroic Warfare", Foreign Affairs, 1995, pp.
109-122 .;
246
Vine. GARRETT, SA, Doing good and
doing well. An examination of
humanitarian intervention, Praeger
Publishers, Westport, 1999, p. 8.
newer of this order, such as human rights.
However, it is stated that despite their
unquestionable reforming and utopian
power, neither at the time of writing the
UN Charter247, nor even today, would
they seem to have acquired sufficient
status to establish themselves under the
protection of such operations.
Furthermore, the protection of human
rights could be seriously undermined
throughout the world by the escalation of
violence and by the disorders and
disagreements that almost always
accompany interventions248.

But does the law authorize or

prohibitinternational humanitarian
interventions? Although the Charter of
the United Nations does not expressly
prohibit them, Articles 2.4 and 2.7 appear
to provide a solid basis for their illegality.
The first establishes a general prohibition
to resort to the threat or use of force
against the territorial integrity or political
independence of any State. The second is
an even broader prohibition to intervene
in matters that are essentially the internal
jurisdiction of States. To these precepts of
the Charter must be added the general
prohibition to intervene based on
international custom that prohibits all
forms of coercive interference in the
internal affairs of a State. This includes
the threat of force, armed intervention,
Either in the form of a direct military
intervention or by supporting the
activities of terrorist or paramilitary
groups in another State, and even
economic sanctions or political measures
if it is proven that they have coercive
effects (Case of Nicaragua). The
Declaration of Principles of International
Law relating to Friendly Relations and
Cooperation among Peoples proclaims in
this regard that “no State may employ or
promote the use of economic, political or
other measures with a view to achieving
subordination in the exercise of their
sovereign rights, nor will it organize,
assist, promote, finance, incite or tolerate
armed, subversive or terrorist activities
aimed at provoking the violent overthrow
of the regime of another State ”249. and
even economic sanctions or political
measures if it is proven that they have
coercive effects (Nicaragua Case). The
Declaration of Principles of International
Law relating to Friendly Relations and
Cooperation among Peoples proclaims in
this regard that “no State may employ or
promote the use of economic, political or
other measures with a view to achieving
subordination in the exercise of their
sovereign rights, nor will it organize,
assist, promote, finance, incite or tolerate
armed, subversive or terrorist activities
aimed at provoking the violent overthrow
of the regime of another State ”249. and
even economic sanctions or political
measures if it is proven that they have
coercive effects (Nicaragua Case). The
Declaration of Principles of International
Law relating to Friendly Relations and
Cooperation among Peoples proclaims in
this regard that “no State may employ or
promote the use of economic, political or
other measures with a view to achieving
subordination in the exercise of their
sovereign rights, nor will it organize,
assist, promote, finance, incite or tolerate
armed, subversive or terrorist activities
aimed at provoking the violent overthrow
of the regime of another State ”249.

Tesó n distinguishes two elements in the

principle of non-intervention. The first,
the level of interference by one State or
the UN in the affairs of another has to
reach the level of an “intervention”, a
circumstance that, as we have pointed
out, ranges from the threat or the use of
force. economic sanctions and, in the case
of the Charter, even suggestions or
recommendations. The second, that the
intervention affects the matters
pertaining to the

247
Vine. MURPHY, SD, Humanitarian
Intervention. The United Nations in an
Evolving World Order, University of
Pennsylvania Press, Philadelphia, 1996,
pp. 66 et seq.
248
CHARNEY, JI, “Anticipatory
H u m a n i t a r i a n I n t e r v e n t i o n in
Kosovo ”, American Journal of
International Law, 93, 1999, p. 835.
249
UN GENERAL ASSEMBLY, Resolution
2625 (XXV), October 24, 1970.
domaine I reservedof a State250 Do both
concur in the case of interventions for
reasons of humanity? If we pay attention
to the very consolidated opinion both
among the doctrine and in the
declarations of the last secretaries
general of the UN, today almost no one
doubts that human rights are no longer a
matter of the internal jurisdiction of the
States. . The presumed illegality of
humanitarian interventions could not
arise, therefore, from the fact that they
are acts that interfere with the
sovereignty of a State. The coercive
nature of the interventions –not so much
their damaging nature to the sovereignty
of other States– thus becomes not only
their main ethical and political problem
but also their greatest legal weakness. It
is therefore in this dimension of the same
where the question must be placed about
their conformity or not with international
law. It will therefore be necessary to
determine, once the general prohibition
of the use of force in article 2.4 has been
established. of the Charter, if this form of
violence, which are humanitarian
interventions, can be covered by some of
the exceptions to this principle.
The Charter only contemplates two
exceptions to this rule: self-defense,
individual or collective in the event of an
armed conflict against a Member State
(Article 51) and the implementation,
under authorization by the Security
Council, of measures destined to maintain
or restore international peace and
security (Chapter VII, arts. 39 ff.). Could
humanitarian interventions be included
under either of these two exceptions? The
answer will depend on how concepts such
as “internal jurisdiction”, “territorial
integrity” or “threat to international
peace” are interpreted and the powers
that are recognized by the Security
Council, and the truth is that one thing
and another They are closely linked to the
different international scenarios that have
been taking shape since the approval of
the Charter until today. As is known, In
these, the possibilities of humanitarian
interventions, their risks and political and
military effects have varied, as well as the
place that human rights occupy in the
configuration of the legal and political
(we cannot say the same of the economic)
world order. In this sense, it is necessary
to differentiate between the effects of the
interventions on the international order
before and after the bipolar epoch, that is,
between the period of time that elapses
between 1945 and 1989 and the one that
begins in this annus mirabilis until today.

If already during the first half of the

twentieth century, and coinciding with
the first initiatives of the League of
Nations to outlaw the use of force in
international relations, invocations of
humanitarian intervention suffered a
significant weakening, during the “Cold
War” the possibilities of intervening
collectively for humanitarian purposes
are practically non-existent.

250
TESÓ N, F., "Collective Humanitarian
Intervention", cit., Pp. 325-329.
they had. During these decades, the
reaction to the horror of totalitarian
domination, of genocide within the
borders of States such as the USSR, China,
Cambodia, etc., was paralyzed by the fear
of the even greater genocide of the atomic
war, which it would have meant the death
of hundreds of millions of people and the
almost certain complete destruction of
the planet251. The force of these fears
was added to the fact that, during this
period, a large number of current UN
member states - those that emerged from
the decolonization of Africa, Asia and
Oceania - will see the light of day. show as
strong defenders of the principle of non-
intervention. Besides being unrealistic
and reckless, Any attempt to undertake a
humanitarian armed operation in this
context would have necessarily failed due
to the veto power that Chapter VII of the
Charter attributes to the five permanent
members of the Security Council: the
United States, China, Great Britain, France
and the USSR. (today Russia). The greater
or lesser possibilities contained in the
Charter to authorize a humanitarian
armed intervention were thus barely
glimpsed.
The end of bipolarity created a much
more favorable scenario for humanitarian
interventions, as supported by the
different operations that have taken place
since then: Iraqi Kurdistan (1991),
Somalia (1992-1993), Haiti (1994),
Rwanda (1994) , Bosnia (1995), Kosovo
(1999), and East Timor (1999). Beginning
in the 1990s, China and Russia adopted a
posture of abstention rather than veto of
Security Council decisions. The
possibilities contained in Chapter VII of
the Charter were then shown to make
possible an organized and
institutionalized response by the
international community to humanitarian
crises of the first order such as those
indicated.

From a legal perspective, one of the keys to

this humanitarian impulseriver should be
sought in the broadest and most flexible
interpretationthat the Security Council is
going to give the concept of threat to
peace in Article 39 of the Charter. The
original meaning of this expression
presupposed the objective existence of a
threat of aggression by one State against
another, or the real danger of an
international armed conflict in any other
way. Although it is more than doubtful
that the drafters of the Charter had a very
different concept in mind, the truth is that
Chapter VII does not contain a definition
of what constitutes a threat to peace and,
indeed, efforts aimed at clarifying this
question failed at the San Francisco
Conference. The Security Council is
therefore not constrained by the language
of said article to determine the existence
of a threat to the peace, thus enjoying
discretion.

251
HASSNER, P, "From War & Peace to
Violence & Intervention", in MOORE, J.
(ed),

Moral dilemmas in humanitarian

intervention, cit., p. 18.
In this matter, it seems reasonable to
think that it is - according to Dworkin's
well-known distinction - a weak rather
than a strong discretion. Despite the fact
that its decisions are not reviewable by
either the General Assembly or the
International Court of Justice, the Security
Council does not have absolute freedom,
but is limited by international law and,
especially, by the rules, principles and
others. normative standards contained in
the Charter252.

Under the protection of the discretion

that Article 39 confers on it, and, as a
result of the development of international
human rights law and the restriction of
the idea of sovereignty, the Security
Council has considerably stretched the
meaning of the term threat of peace to
include among its supposed internal
situations such as civil wars and massive
human rights violations. At first glance,
this fact could be explained as the result
of adopting a broader perspective of
internal conflicts, taking into account the
indirect effects that, despite not crossing
the borders of a State, they can cause:
mainly , massive population movements
to neighboring states that end up creating
masses of refugees who have to be
provided with food, clothing and coat,
with the consequent effects that this has
on their economy and political system. On
the other hand, such population
displacements can provoke insurrections
and revolts among the population of the
neighboring State, especially if they share
religious, ethnic or cultural ties with the
refugees253. Considerations of this type
were invoked by the Security Council in
the authorized interventions in South
Africa, Iraq, Haiti and Kosovo.

However, the Council has gone even

further, considering civil wars that cause
large-scale suffering, serious and massive
human rights violations and even the
coup against a democratically elected
government (only in the case of Haiti),
situations that, by themselves, regardless
of their humanitarian and political effects
on neighboring States, threaten
international peace254. In favor of this
exegesis of the concept of threats to
peace, the following two considerations
made by S.Murphy can be invoked. The
first, that the main purpose of
maintaining peace is not peace per se but
rather, as the preamble to the Charter
proclaims, "to rid future generations of
the scourge of wars" and, therefore,

252
TESÓ N, F., “Collective humanitarian
Intervention”, cit., P. 338-339.
253
MURPHY, SD, Humanitarian
Intervention, cit., P. 285.
254
DUPI, Humanitarian Intervention, cit.,
P. 69.
people. The evidence in this regard
indicates that quantitatively said well-
being is much more threatened by
massive violations of human rights by the
governments themselves than by
international armed conflicts. The second
reason to justify a flexible interpretation
by the Security Council is based on the
greater propensity to embark on acts of
aggression towards its neighbors of the
States within whose borders there are
massive and systematic violations of
human rights255.

Despite the undoubted successes and

good consequences that the broadening
of the concept of threat to peace has
provided for the action of the Security
Council and the launch of the necessary
humanitarian interventions, its possible
dangers cannot, however, be ignored so
much. like the mistakes made. Thus, it has
been pointed out that this has led to a
more political than legal application of
this concept256, thus favoring a
qualifying activity that has been erratic,
absentee or exorbitant in many cases.
Erratic, because in the face of the same
conflict and, in similar situations of
violence and the lack of protection of the
population, it has seen, sometimes yes
and sometimes no, threats to peace (for
example, Rwanda). Absentee, because
conflicts such as the Armenian-Azeri have
not deserved more than requests for a
ceasefire, But it has not even been
classified as a threat to international
peace. Exorbitant, as can be seen from the
actions of the Security Council in the case
of the Pan-Am plane (1988), in which
Libya's refusal to hand over the alleged
terrorists accused was classified as a
threat to the international peace that
justified an air boycott and the embargo
on arms and military equipment257.

Even with these drawbacks, there would

be no excessive problems to admit that,
although it does not speak of
humanitarian interventions, much less of
a right of interference, Chapter VII of the
Charter and, fundamentally, the concept
of threat to international peace, allows a
interpretation under which to shelter
these operations. If this is the case, if they
comply with current legislation, the
interventions carried out under the
authorization of the Security Council
would in principle enjoy broad consensus
on the part of the international
community, thanks to which the risk of
abuse would be considerably reduced. .
As L. Henkin points out, the rationale for
interventions is often ambiguous,
involving many

255
MURPHY, SD, Humanitarian
Intervention, cit., Pp. 290-292.
256
DUPI, Humanitarian Intervention, cit,
p. 74.
257
REMIRO BROTONS, A. and others,
International Law, MacGraw-Hill, Madrid,
1997, pp. 943-944.
uncertainties about the events that cause
them, the motives of the States to
intervene, the possible consequences that
these would have, etc. Hence, what beats
behind the requirement of the collective
of interventions is the moral and political
conviction that we are in the presence of
trials and decisions that cannot be
entrusted to a State but to all nations258 .

The real object of contention is -

especially as a result of the NATO
campaign in Kosovo - the interventions
carried out without the express prior
authorization of the Security Council.
Although it is not the first humanitarian
intervention perpetrated without said
consent, 259 it is the first that has done so
without complying with this requirement
after the end of the Cold War, in a time,
therefore, where it is much more feasible
to intervene under the UN authority and -
apparently - less acceptable to do so
unilaterally. Along with the revolution in
the means of warfare used, one of the
most innovative and outstanding aspects
of the campaign in Kosovo is that it is the
first intervention of which, despite not
taking place under the aegis of the United
Nations, its legitimacy has been claimed
more openly and - even further - even its
legality. Or, perhaps it would seem better
to affirm that the conviction among a
certain sector of the international law
doctrine of the legitimacy of this
intervention has prompted a reflection on
its possible sources of legality.

Let us begin with the political and legal

criticism directed against this
intervention and, at least to some extent,
also by extension to any intervention
carried out without the prior
authorization of the Security Council.
Along with the military means used and
their excessive and unforeseen
humanitarian costs, the bulk of the
censorship against the action in Kosovo is
related to its international political and
legal effects. Through an interested
conjugation of moral principles (human
rights) and the use of force, NATO would
have shown a deep contempt for the so
difficult and slowly carved commitment
to found international relations on rules
of law. By renouncing the institutional
monopoly of the use of armed force to
leave its unleashing in the hands of
regional organizations,
258
HENKIN, L., “Kosovo and the Law of“
Humanitarian Intervention ””, American
Journal of International Law, 93, 1999, p.
825.
259
One of the few similar precedents was
the intervention in the Dominican
Republic in 1965, backed by the OAS. On
this aspect Vid. VARGAS CARREÑ O, E.,
«Humanitarian intervention» in Héctor
Gross Espiell Amicorum Liber. Human
person and Law, Bruylant, Brussels, 1997,
vol.2, pp. 1617-1647.
days at the loom (1907, 1919, 1928, 1945)
”260. Hence, among the victims of the
sixty-eight daysof bombings infringed on
Yugoslavia, Remiro Brotons pointed to
international law, the Charter of the
United Nations and, being a kind of
Constitution of international society, the
fundamental principles of the Law of
Nations261. For this reason, Andrés
Sá enz de Santa María asserts, the
dissociation between the legality and the
legality of the intervention in Kosovo,
apart from being fraudulent, is
destabilizing of the international order
because it hides an attack on the
democratic system embodied by the UN
and a pretense of replace it with a Board
system that would take us back to a
nineteenth-century scheme of
international relations262. Not in vain,

Another of the most pernicious effects of

unilateral or multilateral interventions
revealed by the intervention in Kosovo is
the risk of precipitation. It is true, as we
mentioned earlier, that the effectiveness
and the very raison d'être of the
interventions is the urgency to stop
massive and systematic violations of
human rights. Once the occurrence of this
circumstance has been verified, it seems
reasonable and even obligatory to speed
up the implementation of the armed
intervention as much as possible, instead
of strangling it with procedures and
formalities that could end up turning it
into a remedy that arrives at the wrong
time. As Ignatieff points out, if you are not
prepared to intervene soon, it is better
never to intervene263. However, The
very verification that such violations are
being perpetrated cannot be done in a
hasty manner, but rather - even knowing
that in the course of this operation even
more victims may be claimed - this
requires the availability of reliable
evidence that evidences that such events
they are actually happening. In the case of
Kosovo, there are reasonable grounds to
doubt that this is the case. For some
analysts, the scope of human rights
violations prior to the withdrawal of
OSCE observers was neither

260
GUTIÉ RREZ ESPADA, C., «The use of
force, humanitarian intervention and free
determination (the Kosovo war)» in
BLANC ARTEMIR, A, The international
protection of human rights fifty years
after the universal declaration, Tecnos ,
Madrid, 2001,

p. 211. This assertion is supported by

Brownlie's assertion that it was not until
the twentieth century that International
Law has not prohibited the unilateral
recourse to war as a means of settling
disputes between States. BROWNLIE, I.,
International Law and the use of force by
the States, Clarendon Press, Oxford, 1963.
261
REMIRO BROTONS, A., "A new order
against international law ...", cit.,

p. 1.
262
ANDRÉ S SÁ ENZ DE SANTA MARÍA, P.,
“Kosovo: Everything for International Law

final but without International Law ”, cit.,

pp. 7-8.
263
IGNATIEFF, M., The honor of the
warrior, cit., P. 99.
massive or extended 264. Furthermore, it
seems more reasonable to think that
Albano-Sovars were not being victims of a
genuine genocide but rather of ethnic
cleansing, since what the murders
committed by the Serbs were pursuing
was not so much the annihilation of the
Albanian population as their intimidation
and expulsion from the territory of
Kosovo265 . Hence, the NATO
intervention must be dismissed as hasty,
as it was deployed not so much in
response to objective data about what
was happening in Kosovo as because of
the fear of a reissue of what happened
years ago in Bosnia266. Charney
therefore speaks of an “anxious”
humanitarian intervention, which can set
the dangerous precedent of supporting a
right of intervention without proof that a
massive violation of human rights is
taking place,

In defense of the legitimacy of this

intervention, it is recalled that it took place
in circumstances that placed the
intervening countries in front of a dramatic
choice: o respect the international legal
order and, in the face of the paralysis of the
Security Council caused by the more than
likely veto of Russiaand China to an armed
intervention, silently and passively
witness the death and persecution of
thousands of human beings, or do
something to avoid the latter but without
the prior authorization of the Council,
unilaterally or multilaterally and not
collectively, thus violating international
legality268. .

264
CHARNEY, J., “Anticipatory
Humanitarian Intervention in Kosovo ”,
cit., P. 839-840; CHOMSKY, N., A new
generation draws the line. East Timor and
the Standard of the West, Verso, New
York, 2001, p. 36. During the bombing
campaign, the US Secretary of Defense,
Willian Cohen, put the number of victims
at at least 100,000. However, the forensic
teams of the International Criminal Court
in The Hague had failed in August 2000 to
find more than 2000 or 3000. The
number of alleged victims of the ethnic
cleansing carried out by the Serbs against
Kosovar Albanian citizens was
exaggerated by the high command of
NATO to justify their intervention. Vine.
the information collected in El Mundo,
Saturday August 16, 2000, p. 12.
265
DUNNE, T. and KROSLAK, D.,
“Genocide: Knowing what it is that we
want to recall, or forget, or forgive”, cit.,
Pp. 37 and 41.
266
Vine. WESTENDORP, C., "Kosovo, The
Lessons of Bosnia", Foreign Policy, XIII,July-
August, 1999, nº 70, pp. 45-58.
267
CHARNEY, J., "Anticipatory
Humanitarian Intervention", cit., P. 841.
In the same sense ANDRÉ S SÁ ENZ DE
SANTA MARÍA, P., “Kosovo: everything for
international law…”, cit., P. 8.
268
CASSESE, A., “Ex iniuria oritur: Are we
Moving towards International
Legitimation of Forcible Humanitarian
Countermeasures in the World
Community?”, Europan Journal of
International Law, 10, 1999, p. 25. On the
nature of the moral dilemmas present in
humanitarian interventions, Vid.
JOHNSON, P, "Intervention and moral
dilemmas" in FORBES, I. and HOFFMANN,
M., Political Theory, International
Relations and the Ethics of Intervention,
cit., Pp. 61-72.
Referring in a case like this to an eventual
and necessary reform of the decision-
making mechanisms of the United Nations
can be, as Virgilio Zapatero points out, a
way of escaping the dilemma of choosing
legality or morality. In the meantime, this
reform does not take place. Will humanity
helplessly assist policies of genocide or
ethnic cleansing given the inability of the
Security Council to make certain decisions
in this regard? 269

Faced with this dilemma - Cassese

wonders - What to do?Remain silent and
inactive just because the existing body of
international law is unable to remedy
such a situation? Or should the rule of law
rather be sacrificed on the altar of human
compassion? The Italian professor's
answer is that, from an ethical point of
view, the use of force in Kosovo was
justified, although as a jurist he cannot
help but observe that this moral action is
contrary to current international law. The
UN Secretary General himself would seem
to endorse this solution when in 1999, in
the Annual Report to the UN General
Assembly, he referred to the genocide in
Rwanda in the following terms: “Yes, in
those dark days and hours leading to
genocide ,

One of the ways to overcome this tension

between legality and legitimacy, between
legal security and justice271, would be to
consent to these humanitarian
interventions, considering them a
necessary and desirable violation of
international law in the light of the
specific circumstances in which they take
place. The advantage of this solution
would lie, according to Charney, in that by
maintaining the illegality of such
interventions and by requiring States to
violate the law in extreme circumstances,
it would be easier to avoid abuses272. In
reality, we would be faced with extreme
cases of “moral catastrophe” and,
therefore, outside the walls of law273.
Hence, a moral and legal justification is
claimed for humanitarian interventions
without prior authorization from the
Security Council as acts excused by moral
necessity. However, according to what
was expressed in the Report of the Law
Commission

269
ZAPATERO, V., "Presentation", cit., Pp.
10-11.
270
General Report of the UN Secretary
General to the General Assembly,
September 20, 1999.
271
On this aspect Vid. ARCOS RAMÍREZ, F.,
Legal certainty: a formal theory,
Dykinson, Madrid, 2000, pp. 403-409.
272
CHARNEY, "Anticipatory
Humanitarian Intervention", cit., P. 838.
273
FARER, TJ, “Human Rights in Law's
Empire: The Jurisprudence War”, The
American Journal of International Law,
85, 1991, pp. 117 sqq.
international, interventionhumanitarian
would not be covered by the state of need.
The following two reasons could be
adduced in favor of this conclusion. The
first, that the doctrine of the state of
necessity has a very restricted scope,
requiring for its concurrence the presence
of an essential interest of the intervening
State not comparable to the violated
interest of the State object of the
intervention. The second, that it is highly
debatable that the state of necessity can,
in any case, justify the use of armed force
against another State, a possibility that
seems to be reserved exclusively for
legitimate defense274.

A large group of internationalists,

especially Americans, has followed a
more ambitious path consisting of
demonstrating the legality of these
interventions without prior authorization
from the Security Council. The most
classic argument invoked by this doctrine
is that said humanitarian interventions
would be in accordance with a restrictive
corrective interpretation of article 2.4. of
the letter. According to this reasoning,
they would not be acts directed against
"the territorial integrity" or "political
independence" of a State and, above all,
they would not be acts "inconsistent with
the purposes and principles of the
Charter", but rather in conformity to one
of the purposes of the UN, such as the
promotion of respect for human rights
(Article 1.3. of the Charter). For example,

Faced with this argument, the

pronouncements of the International
Court of Justice in the case of the Corfu
Strait (1949) and in the subsequent one
regarding the actions of the military and
paramilitaries in Nicaragua (1986),
clearly support a broad interpretation of
the concept of non-intervention which,
together with the exclusion of any rule of
legitimacy, ab initio, on the internal
regime of the States, would not admit
exceptions to the general prohibition of
the use of force275. Furthermore, in the
Nicaragua case, by disavowing the use of
armed force to stop human rights
violations in another state, the
International Court of Justice seems to
implicitly reject the doctrine of
humanitarian intervention as
incompatible with the prohibition of use
of force between states.

A more subtle argument is what is known

as link theory. According to its defenders,
humanitarian intervention would not be
incompatible

274
lDUPI, Humanitarian Intervention.
Legal and Political Aspects, cit., P. 94.
275
ROLDÁ N BARBERO, J., Democracy and
International Law, Civitas, Madrid, 1994,
p. 174.
ble with article 2.4. insofar as it is based
on a subsidiary responsibility of member
states to maintain international peace and
security that would come into operation
when the Security Council is unable to
fulfill its responsibilities under article 2.4
and chapter VII of the Charter 276. An
attempt has also been made to defend the
legality of NATO's intervention in the
existence of a gap in the collective
security system of the Charter,
specifically, the absence of a normative
solution in the event that the UN is
blocked, not being able to then authorize
or direct a necessary action. For Weckel,
this void should be filled by recognizing
the right of States to do what they deem
to maintain threatened international
peace and security277.

More sophisticated is the argument

referred to by N. Kirsch:the defense of
interventions without the express prior
authorization of the Security Council,
appealing to an alleged "right of unilateral
execution of the collective will" 278. In
the interventions carried out in Iraq and
Kosovo, the intervening States claimed to
be executing Security Council resolutions
for which, however, the latter had not
authorized the use of force to enforce
them. By means of this figure, the
interventions carried out without the
prior authorization of the Security
Council would no longer be completely
unilateral acts, but a combination of
collective elements (the decisions of the
Council in which a situation is classified
as a threat of the international peace) and
unilateral (the decision of one or more
States to use force to enforce such
resolutions). This combination of
unilateralism and collectivism would
allow the tension between justice, order
and peace to be reconciled in an
acceptable way. Furthermore, support for
a collective decision would reduce the
feeling that certain states forcibly impose
a particular interpretation of common
interests, thus making it easier to reject
the charge of neo-imperialism279. This
argument that Kisch tells us about would
be the product of the doctrinal
elaboration of one of the main lines
adopted to defend the intervention of
NATO. Specifically, of which he justified
the bombings as an action taken within
the framework of Council Resolutions,
more specifically, Resolution 1203
(1998). In it, the Security Council
supported and endorsed the agreements
signed by the Supporting a collective
decision would reduce the feeling that
certain states forcibly impose a particular
interpretation of common interests, thus
making it easier to reject the charge of
neo-imperialism279. This argument that
Kisch tells us about would be the product
of the doctrinal elaboration of one of the
main lines adopted to defend the
intervention of NATO. Specifically, of
which he justified the bombings as an
action taken within the framework of
Council Resolutions, more specifically,
Resolution 1203 (1998). In it, the Security
Council supported and endorsed the
agreements signed by the Supporting a
collective decision would reduce the
feeling that certain states forcibly impose
a particular interpretation of common
interests, thus making it easier to reject
the charge of neo-imperialism279. This
argument that Kisch tells us about would
be the product of the doctrinal
elaboration of one of the main lines
adopted to defend the intervention of
NATO. Specifically, of which he justified
the bombings as an action taken within
the framework of Council Resolutions,
more specifically, Resolution 1203
(1998). In it, the Security Council
supported and endorsed the agreements
signed by the making it easier to reject
the accusation of neo-imperialism279.
This argument that Kisch tells us about
would be the product of the doctrinal
elaboration of one of the main lines
adopted to defend the intervention of
NATO. Specifically, of which he justified
the bombings as an action taken within
the framework of Council Resolutions,
more specifically, Resolution 1203
(1998). In it, the Security Council
supported and endorsed the agreements
signed by the making it easier to reject
the accusation of neo-imperialism279.
This argument that Kisch tells us about
would be the product of the doctrinal
elaboration of one of the main lines
adopted to defend the intervention of
NATO. Specifically, of which he justified
the bombings as an action taken within
the framework of Council Resolutions,
more specifically, Resolution 1203
(1998). In it, the Security Council
supported and endorsed the agreements
signed by the
276
DUPI, Humanitarian Intervention, cit.,
P. 82.
277
WECKEL, P., "L'emploi de la force
contre le Yugoslavie ou la Charte
fissureé", Révue Générale de Droit
International Public, nº1, 2000, p. 33.
278
KIRSCH, N, “Unilateral enforcement of
the collective Will: Kosovo, Iraq and the
Security Council”, cit., Pp. 86 sqq.
279
Ibid, p. 93. In defense of this opinion
Vid. WALTER, C., “Security Council
Control Over Regional Action”, Max
Planch Year-Book of United Nations Law,
1, 1997, pp. 129 sqq.
Federal Republic of Yugoslavia and the
OSCE, on the one hand, and NATO, on the
other, and demanded their prompt and
complete implementation by
Yugoslavia280.

After revealingThe favorable

interpretations of the emergence of this
right and the beneficial consequences that
this would bring, Kirsch considers that its
recognition would end up with serious
consequences for the future of
international security, such as the
blockade of the collective security system.
If any determination of the existence of a
threat to international peace entailed the
possibility of unilateral military action,
the members of the Council would be
much more reluctant to use that
qualifying power. Furthermore, if this
opens the way for military intervention,
this would cause the rest of the solutions
contemplated in Chapter VII of the
Charter, such as provisional measures or
sanctions, to cease to be adopted. In
conclusion, “A right to unilaterally
execute the decisions of the Security
Council would not create a stable
situation; on the contrary, it would erode
the security system with the possible
result of its paralysis ”281.

A different way that would have allowed

defending the legality of NATO's
intervention would be, in Wheeler's
opinion, that the member states of this
military alliance that are part of the
Security Council had interposed a formal
resolution with a view to requesting that
the matter be transferred to the General
Assembly under the protection of
resolution 377 (Pro Paz Resolution), thus
avoiding the paralyzing power of the right
of veto from which these procedural
questions would be safe. If NATO had won
a formal vote in the Council and then a
material vote in the General Assembly,
then there would have been an adequate
legal basis on which to support its air
operations282.

As we can see, all these attempts aimed at

advocating the compatibility of
humanitarian interference with
conventional and customary international
law seem doomed to failure.
Humanitarian interventions are therefore
no exception to the prohibition on the use
of force contained in the Charter.
However, this does not mean that its
defenders give up, resigning themselves
to considering such acts as simple
violations of the international legal order.
Exhausted all the possibilities of
demonstrating its conformity with the
lege data, its efforts are now going to be
directed to interpreting

280
RIPOLL CARULLA, S., “The Security
Council and the defense of human rights.
Reflections from the case of Kosovo ”,
Spanish Journal of International Law, LI,
1999, p. 61.
281
Ibid, p. 94.
282
WHEELER, N., Saving Stangers, cit., Pp.
297-298.
the concurrence of such formally illegal
acts as an evolution towards something
better.

The most daring and probably less

plausible answer is the one defended not
by a jurist but by a philosopher like
Habermas. In the heat of the debate that
took place in the European media about
the timeliness and legitimacy of the NATO
military campaign in Kosovo, the
professor from Frankfurt defended the
thesis that this intervention would be
justified by the institutional weakness of
the UN organizations and the progress
that could be derived from the validity of
a cosmopolitan law based on human
rights. The collateral damage suffered by
international law would thus be
compensated and exceeded by the
advance towards a cosmopolitan
citizenship, by an evolution from the
classic international law of States to the
Cosmopolitan Law of a society of citizens
of the world283.

The weaknesses and inconsistencies of this

thesis are many. Suffice it to repro-reduce
the criticism that Garzó n Valdés directs
him. In his opinion, the intervention of the
Atlantic Alliance in Kosovo cannot be
considered to have prompted the creation
of a Cosmopolitan Law. Rather, what this
campaign entailed was to attribute
sovereignty exclusively to one group of
states with the consequent unilateral
diminution of the sovereignty of others.
The oligarchic structure of the Security
Council was replaced by another equally
oligarchic and, even more, military
structure.

A more moderate and reasonable

alternative is to interpret all this as the
emergence of a customary law of
humanitarian interventions285, as the
crystallization of a new international legal
norm of a general nature that authorizes
the use of armed countermeasures for the
exclusive purpose of put an end to large-
scale atrocities constituting crimes
against humanity and threats to
peace286. The interpretation of these
illegal formal acts as something more
than a violation of international law only
makes sense by placing them in a broader
context, in the
283
HABERMAS, J., “Bestialitä t und
Humanitä t. Ein Kreig and der Grenze
zwischen Recht und Moral ”, Die Zeit, May
25, 199, p. 18, cited by GARZÓ N VALDÉ S,
E., “Guerra e diritti humani”, cit., P. 38.
284
WALDRON, J., "Minorities Cultures and
the Cosmopolitan Alternative" in
KYMLICKA, W. (ed), The Rights of
Minorities Cultures, Oxford University
Press, 1995, pp. 93-119.
285
CAPLAN, R., “Humanitarian
Intervention: Which Way Forward ?, cit.,
P. 37.
286
CASSESE, A., "Ex inuria oritur ...", cit, p.
29.
that there are certain trends indicative of
a transformation of the legal and political
framework currently in force and that
would allow a second reading in
accordance with the current evolution of
the United Nations Charter287. The most
important would be the following:

1) The increasingly accused conscience

that protectionHuman rights concerns not
only the domain reserved for States, but
the international community as a whole.
The obligations to respect human rights
are binding on everyone, therefore,
correlatively, every State or group of
States has the right and / or duty to take
the necessary steps to obtain it288.
Avoiding the massive violation of human
rights is prefiguring, as Gutiérrez Espada
points out, a right-duty of every well-born
State when no one does, and that would
be imposed even on the general
prohibition of the use of force. A
reflection that the International Court of
Justice seems to suggest in 1996, when it
maintains that every State has not only
the power to intervene to prevent or
punish genocide but also the obligation to
do so289.
Along the same lines, the current UN
Secretary General, Kofi Annan, has
declared that “there is no legal principle -
not even sovereignty - that can protect
crimes against humanity. In places where
these crimes are committed and attempts
to put an end to them by peaceful means
have been exhausted, the Security Council
has a moral duty to act on behalf of the
international community ”290. This
declaration expresses the conviction that
the Security Council would not enjoy as
much discretion as it has been recognized
up to now, but rather - at least with
regard to the obligation to respond to
genocide or other crimes against
humanity - it would increasingly subject
to certain duties.

2) The international community

seemsincreasingly dominated by the idea
that large-scale and systematic atrocities
give rise to accountability

287
GURIÉ RREZ ESPADA, C., «Use of force,
humanitarian intervention and free
determination», cit., P. 217.
288
CASSESE, A, "Ex inuria oritur ...", cit., P.
26.
289
GUTIÉ RREZ ESPADA, C., «The use of
force, humanitarian intervention and free
determination», cit., Pp. 216-217. The TIJ
resolution is the judgment of July 11,
1996, issue on the application of the
Convention on the prevention and
punishment of genocide (Bosnia and
Herzegovina v. Yugoslavia), ICJ Recueil,
1996, pp. 595 ss, mp. 31, in fine (p. 616).
290
ANNAN, K., Millennium Report, 2000,
pf. 219. Web address:http://www.un.org/
spanish / millennium / sg / report /.
aggravated states. This empowers other
States and international organizations to
make use of responses other than those
contemplated for criminal
responsibility291.

3) It is also an unquestionable fact

that, for a decade, the international
community has not stopped intervening
through international troops in internal
conflicts in which human rights were in
serious danger.

4) Some NGOs and even government

officials have claimed that, under certain
circumstances, where atrocities reach
such a level that they shake the
conscience of all human beings and
actually threaten international peace,
armed protection of human rights must
prevail. Learn about the need to avoid
friction and armed conflict.

Once the trends in law and international

relations that would advocate in favor of
the emergence of a right of humanitarian
intervention without authorization from
the Security Council have been pointed
out, its acceptance would be subject to the
satisfaction of certain requirements,
norms and procedures that limit the
possibility of abuse. If, as is obvious, these
parameters are not found in positive law,
they will have to be sought outside of it, in
morals and / or politics. This
circumstance would explain the interest
and usefulness of the just war theory to
which we referred earlier. As already
mentioned, Characteristic of this doctrine
is the defense of a model of legitimacy for
interventions that avoids the rigidity of a
deontological justification and opts for
the flexibility of a set of criteria adapted
to the context and observable to different
degrees. In this way, this theory offers a
much more complex and, above all, less
formalistic perception of the
interventions, which would allow
sustaining the legitimacy and legality in
the sense outlined of the interventions
carried out without prior and express
authorization from the Security Council.
The just war doctrine, if on the one hand
it expands the conditions to which the
correction of an intervention is subject,
on the other it allows compensating the
minor and even null observance of any of
its criteria with the concurrence in a
higher degree of some other . As Fixdal
and Smith point out, the criterion of
legitimate authority (precisely the
parameter that interventions would not
meet without the authorization of the
Security Council) can be considered to be
sensitive to the rest of the criteria. Thus,
the more evident the injustice against
which it is acted, the less is the demand
that the authority be clear; and vice versa,

291
CASSESE, A., "Ex inuria oritur ...", cit., P.
26..
how many more alternatives existto
armed intervention, the more solidly
established the legitimate authority must
be found292.

According to Cassese, Charney or Caplan,

the conditionsthat would progressively
make the interventions outside the
Security Council acceptable are the
following:

1) Massive and systematic violations

of human rights that constitute crimes
against humanity are taking place by or
with the support of a State. Charney
insists that proof or evidence be available
that this is indeed the case.

2) A regional organization belonging

to the same regional scope as that of the
State where the abuses is taking place
must be warned to put an end to them
and that the State, however, refuses to do
so.

3) Exhaustion of allprior resources,

including negotiations, political
initiatives, economic sanctions, etc.

4) That the Security Council is

incapable of adopting any measure of
force to stop the massacres due to
disagreement among its members or
because one or more of them exercises
the right of veto. This fact could be
considered - in the light of what was
stated by Kofi Annan - the breach of an
authentic moral duty.

5) Once the paralysis of the Security

Council is verified, regional organizations
can legally intervene through the use of
force to stop massive human rights
violations, as long as they observe the
following conditions referred to by
Charney:

a) The State in which the

intervention is to be carried out must be
notified prior to the imminent use of
force.

b) Prior to the intervention, the

States that are going to participate in it
must undertake to accept the jurisdiction
of the International Court of Justice in the
event that, in the course of the military
action, there is any violation of
international law, and to the jurisdiction
of the International Criminal Court for
crimes that may be committed by its
nationals during the intervention.

c) The use of force must be reduced

to what is necessary to stop the
massacres and must be proportionate to
the damage that is to be stopped or
avoided.

292
FIXDAL, M and SMITH, D,
"Humanitarian Intervention and Just
War", cit., P.
d) Once the intervention has fulfilled
its objective, the foreign troops must
withdraw unless the intervened State
consents to their permanence or the
Security Council so authorizes it in
accordance with Chapter VII of the
Charter.
II. CONSIDERATIONSFINAL
S

At least in terms of its legitimacy and

moral and political credibility, I believe
that the real enemy of humanitarian
interventions is no longer found in the
prohibition of interfering in the domain of
States. As we have seen, all the arguments
elaborated by political and legal thought
during the last centuries in order to
justify the duty of non-intervention have
ultimately sought to deny that human
rights constitute a moral imperative that
is above all rights. values on which the
legitimacy of the States rests. More
specifically, in different ways, an attempt
has been made to justify that in
international society the State does not
necessarily have to be subject to the
public ethics that human rights represent,
that international and domestic morality
need not be identical. However, neither
sovereignty, nor the right of political
communities to be free by their own
efforts, nor the defense of the cultural
identity of a people have a moral value
superior to human rights that justifies not
doing everything possible. to stop a
massive and systematic violation of these.

Nor should the enemies of humanitarian

interventions be found among the ranks
of skepticism or ethical-cultural
relativism. We must admit that we cannot
intervene to forcibly import to other
societies and cultures our model of
political legitimacy based on democracy,
the secular state, broad civil and political
rights and the prohibition of negative
discrimination based on sex, race,
religion, etc. Apart from being reckless
due to the risks to which international
peace would be exposed, the principle of
tolerance would require us to be
respectful of an international society in
which there is a reasonable ethico-
cultural pluralism. Furthermore, even if
this were ethically admissible, it would
nevertheless artificially accelerate the
political and moral development of other
communities. However,
 V. FINAL CONSIDERATIONS 10

diverse, the rights by whose safeguarding

the borders of a sovereign State should be
crossed belong to that moral minimum
that, as historical reiteration and fear of
our own species have shown, is
sufficiently uncontroversial, culturally
neutral and politically necessary. as if to
declare it universal. Therefore, it seems
impossible to question that the
prohibition of genocide, slavery or ethnic
cleansing transcends any form of
relativism and that this can be expressed
in the language of universal human rights
to life and personal liberty.

Although it may seem strange and

paradoxical, what can really end up
questioning the ethical and political
reputation of humanitarian interventions
is human rights themselves or, rather, the
way in which they have been used many
times to justify them. We noted in the
introduction that, for the most convinced
advocates of interventions, taking human
rights seriously inevitably meant being
prepared and willing to use force to
defend them against their aggressors.
There are those who go a little or much
further, affirming that this inevitably
passes by also taking seriously its
 V. FINAL CONSIDERATIONS 10

universality and absolute character,

accepting that they also impose erga
omnes duties that must prevail over any
other moral and political consideration.
or other type. Therefore, It is not only that
we can use force to defend them, but that
we also have an inescapable duty to do so.
If to all this we add the strong emotional
charge that the expression “human rights”
has in political and media language, we
can then understand the risks that
justifying a humanitarian intervention
exclusively on human rights entails.

The first is that, by presenting it as the

result of an up-to-date and cosmopolitan
reading of the United Nations Charter, we
run the risk of turning the defense free of
obstacles and institutional controls of
human rights into the key to a new legal
order. world over the one currently in
force and in a position, therefore, to
justify the violation of the latter whenever
it is deemed morally necessary. It cannot
be denied that the security system
contained in the UN Charter requires a
reform that allows a better and faster
response from the international
community to situations such as those we
have been commenting on. There is also
 V. FINAL CONSIDERATIONS 10

no doubt that, due to the veto power of

the permanent members of the Security
Council, International law has been many
times and can continue to be a decisive
obstacle to aborting necessary
humanitarian interventions. But if the
intervention in Kosovo is to serve as a
sample, what can really happen when
acting outside the rules of international
law is not a better defense of human
rights but something quite different. On
the one hand, the replacement of
international institutions in which
All states are represented by a military
oligarchy more willing to solve problems
by force than through dialogue and
patient negotiation. On the other hand, a
combination of national interests and
moral values applied "selectively,
arbitrarily and discriminatory" 293.

Another of the risks mentioned is that of

idealism, rigorism and abstraction in the
justification of the interventions. On the
one hand, from the fact that human rights
are a higher moral value than States, it
does not follow that armed intervention is
an obligation required by respect for the
former. On the other hand, affirming that
intervening for a humanitarian motive or
intention is equivalent to defending
human rights supposes striking a kind of
punch on the table in the discussion about
the legitimacy of humanitarian
interventions. If we add the decisive
influence exerted by the selection of
especially spectacular and shocking
television images of massacres such as
those in Rwanda or Bosnia on the ethical
conscience of citizens,

The moral language of humanitarian

interventions cannot therefore be
reduced to human rights or, at least, to
these situated only on the intuitive plane
of abstract principles or television
images. Human rights should also be
taken seriously when assessing the means
and results of interventions. The finding
that, no matter how much euphemisms
and idealistic rhetoric are used, these are
acts of warfare that inevitably produce
deaths among innocent civilians and that
do not always achieve their objectives or
do so at an excessive cost, allows us to
establish that What is really put into
discussion with the interventions is not
the principle of non-intervention, on the
one hand, and human rights, on the other
hand, but rather the injury to the human
rights of one group to ensure the validity
of those same human rights in another
group. For this reason, although without
even considering its use incompatible
with the defense of human rights, it must
be admitted that humanitarian
interventions can only be legitimate to
the extent that they do not end up being
more damaging to life and liberty than the
killings themselves. that they try to stop.
And it must be recognized that, given the
destructive potential of contemporary
weaponry, this does not seem at all easy
and requires, in any case, to be fully
aware of It must be admitted that
humanitarian interventions can only be
legitimate to the extent that they do not
end up being more damaging to life and
liberty than the very massacres they are
trying to stop. And it must be recognized
that, given the destructive potential of
contemporary weaponry, this does not
seem at all easy and requires, in any case,
to be fully aware of It must be admitted
that humanitarian interventions can only
be legitimate to the extent that they do
not end up being more damaging to life
and liberty than the very massacres they
are trying to stop. And it must be
recognized that, given the destructive
potential of contemporary weaponry, this
does not seem at all easy and requires, in
any case, to be fully aware of

293
REMIRO BROTONS, A., "A new order
against international law", cit., P. 1.
that a poor selection of means can end up
damaging the ends for which it
intervenes.

On the other hand, the commitment to

human rights represented by the
interventions can lead to a moral
dilemma that is very difficult to solve: if
the former imply the equal moral value of
all human beings, the obligation to
endanger the lives of our neighbors,
friends and compatriots to save that of
other individuals to whom we are united
by the much more abstract bond of the
human race. But to what extent is a
supererogatory action morally
enforceable? Garzó n Valdés has affirmed
that no rational ethics can impose the
sacrifice of a good to save another of
equal value because this would turn the
world into a “moral hell”. It therefore
gives the impression that the justification
of the interventions has sometimes
embraced an excessively radical version
of cosmopolitanism, insensitive to the
value of personal and community
loyalties and, above all, far removed from
the still little cosmopolitan sentiments of
public opinion in practically all countries.
This does not mean, however, that the
governments of the intervening States
attempt to resolve this undeniable
conflict between loyalties to their own
community and their duties to humanity
using a type of weaponry and military
strategy that puts the safety of their
troops completely before that of the
civilians to be rescued; Nor should we
stop intervening in situations where there
are good reasons to think that the use of
force can be successful with very limited
losses. far removed from the still little
cosmopolitan sentiments of public
opinion in practically all countries. This
does not mean, however, that the
governments of the intervening States
attempt to resolve this undeniable
conflict between loyalties to their own
community and their duties to humanity
using a type of weaponry and military
strategy that puts the safety of their
troops completely before that of the
civilians to be rescued; Nor should we
stop intervening in situations where there
are good reasons to think that the use of
force can be successful with very limited
losses. far removed from the still little
cosmopolitan sentiments of public
opinion in practically all countries. This
does not mean, however, that the
governments of the intervening States
attempt to resolve this undeniable
conflict between loyalties to their own
community and their duties to humanity
using a type of weaponry and military
strategy that puts the safety of their
troops completely before that of the
civilians to be rescued; Nor should we
stop intervening in situations where there
are good reasons to think that the use of
force can be successful with very limited
losses. that the governments of the
intervening States try to resolve this
undeniable conflict between loyalties
towards their own community and their
duties towards humanity using a type of
weaponry and military strategy that puts
the safety of their troops completely
before that of the civilians who are
pretends to rescue; Nor should we stop
intervening in situations where there are
good reasons to think that the use of force
can be successful with very limited losses.
that the governments of the intervening
States try to resolve this undeniable
conflict between loyalties towards their
own community and their duties towards
humanity using a type of weaponry and
military strategy that puts the safety of
their troops completely before that of the
civilians who are pretends to rescue; Nor
should we stop intervening in situations
where there are good reasons to think
that the use of force can be successful
with very limited losses.

The interventionsHuman rights can also

cast a shadow over the universal value of
human rights by showing very different,
and therefore incoherent responses to
morally comparable situations. The
interventions often seem fueled by a
visceral humanitarianism that only
focuses on the most spectacular and
pressing forms of injustice and suffering:
those towards which the Western media
and public opinion seem to show the
greatest interest and sensitivity, and in
others. those in which it seems easier to
establish a moral rather than a political
link between rescuers and victims. For
this humanitarianism, death and suffering
only become motive and reason for
external intervention when they are
caused suddenly by the abuse of political
power or by civil wars,

Finally, the rhetoric of human rights can

also hide an imperialist temptation on the
ethical and cultural level. Not always that
we intervene, we do so out of the
intention of defending basic needs.

and urgent matters that we have agreed to

protect through the moral and legal
categoryof human rights, but sometimes
we do it as much or more for ourselves,
out of a feeling of superiority that leads us
to believe we have the right to impose by
force the universality of human rights on
others. cultures and civilizations. In
Ignatieff's words, “when politics moves
for moral reasons it is usually narcissistic.
We do not intervene just to save others,
but to save ourselves, or rather, to save
our image as defenders of universal
decency. We want to show that the West
is more than just a word ”294.

Does all this mean that we should not use

armed force toprotect human rights? The
answer is we can and we must do it, but if
we assume that human rights cannot only
be in the before the intervention, in the
motives or reasons that move to act
militarily, but also in the during and after
the intervention , that is, in the means it
uses and in the humanitarian, political
and legal consequences that could
accompany it. This would show that the
best we can do so that human rights do
not act as a true moralizing element of the
interventions is to place their force not so
much in the context of discovery as in
justification of these operations. If we
don't want to turn humanitarianism into
irresponsible rhetoric,
294
IGNATIEFF, M., The honor of the
warrior .., cit., P. 93.
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